Copyright &#8211; Law Street

People: Legal Win for Kesha in Dr. Luke Lawsuit: Judge Dismisses Claims

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Why is Beyoncé Being Sued for $20 Million?

Victoria Sheridan — Thu, 09 Feb 2017 19:52:21 +0000

Image Courtesy of Kristopher Harris License: (CC BY 2.0)

When life hands Beyoncé lemons, she makes “Lemonade.” So how will she handle a $20 million lawsuit?

The singer is being sued by the family of a late rapper, comedian, and Youtube personality for allegedly sampling him without permission in “Formation,” a chart-topping single from her most recent album, “Lemonade.”

The song features the voice of Anthony Barré, better known by his stage name Messy Mya. Barré’s humor made him a local celebrity in New Orleans, where he lived, but he would also use his platform to discuss the short life expectancies of young black men in the city. In 2010, at 22 years old, he was shot and killed.

Recordings of his voice, pulled from a handful of his videos, can be heard at the beginning of “Formation” and in between verses. Some saw Beyoncé’s inclusion of Barré on the track as a both a tribute to New Orleans culture and commentary on the city’s violence.

But the internet sensation’s sister, Angel Barré, is seeking royalties as well as proper attribution to her brother, who is allegedly not listed in the song’s credits. Anthony Barré’s estate said they had reached out to Beyoncé before filing the suit, but she was unresponsive.

The copyright case, which was filed in Louisiana District Court, also names Sony Music and Beyoncé’s company Parkwood Entertainment as defendants. According to MTV News, the lawyers representing Barré’s estate wrote in a statement:

The Estate of Anthony Barré alleges that Beyoncé Knowles Carter, Parkwood Entertainment, LLC, Sony Music Entertainment and others produced, distributed, publicly performed, used and otherwise exploited the voice, words and performance of the late Anthony Barré, also known as Messy Mya, without authorization in the extremely popular ‘Formation’ recording. Barré was a well-known performance comedian, music artist and MC in New Orleans. He is very closely associated with the Bounce music phenomenon in New Orleans. There are more than a hundred videos documenting his performance, statements, comedic routines, etc.

According to Forbes, the popstar could potentially use the fair use doctrine, which allows certain uses of copyrighted material without permission from the owners, as a defense, because of the political statements included in “Formation.” Under the 1976 Copyright Act, reproducing work “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright.” This argument, however, may not hold up given how much she has profited from the song.

In September, a New York judge dismissed a separate copyright suit regarding “Lemonade,” in which a filmmaker claimed that Beyoncé had replicated scenes from one of his films in the album’s trailer and music videos.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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The Kardashians Try to Prevent Blac Chyna from Legally Using Their Name

Mariam Jaffery — Sat, 10 Dec 2016 16:07:07 +0000

Image courtesy of The Heart Truth; License: Public Domain

A lawsuit against their future sister-in-law is the cherry on top of an eventful few months for the Kardashians.

Khloe, Kourtney, and Kim have filed legal documents to prevent Blac Chyna (whose actual name is Angela Renée White) from being able to trademark the Kardashian name for her own personal brand. In case you haven’t been “keeping up,” Chyna is the fiancée of Rob Kardashian, and she took legal action back in May to secure her future family’s name for business purposes.

The legal action taken by the Kardashian family cites that the sisters “will suffer damage including irreparable injury to their reputation and goodwill if the Opposed Mark is allowed to register.”

The relationship between Chyna and the Kardashians has been a tumultuous one, but they seemed to be on good terms recently. However, after being accused of “deliberately seeking to profit from the goodwill and popularity” of the Kardashian name, family relations are sure to get a little awkward.

TMZ reports that the sisters assured Chyna the filings were not meant to single her out and were just “standard” procedures taken by their lawyers.

The Kardashian name itself is an important part of the various businesses owned by the family, which include products such as clothing, fragrance, makeup and home goods, among others. Additionally, the money they make off of self-promotion in the form of personal appearances and social media depend a lot upon the value of the Kardashian name.

Kris Jenner herself considered changing her name back to Kardashian in the past, and cited business purposes for doing so.

Chyna’s lawyer told People that his expectations are that it will be a “clear case win, because it’s actually her name, it’s not a poaching.”

Regardless of the intentions, it should be interesting to see how this all plays out as the family prepares to welcome Chyna into the family.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

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Citigroup, Owner of “Thank You,” Sues AT&T for Using “Thanks”

Sean Simon — Tue, 14 Jun 2016 15:15:55 +0000

"Thank You" courtesy of [Nate Grigg via Flickr]

Citigroup, the banking company with over $1.7 trillion dollars in assets, really likes to say “Thank you.” Citigroup’s rewards system is called “Citi Thank You,” and Citigroup is the owner of www.thankyou.com. Because of its frequent use of the words “thank you,” the company has registered the “THANKYOU” trademark.

The trouble is, AT&T launched a promotion for a rewards program connecting its cell service with a Citigroup-backed credit card, called “AT&T Thanks.” Citigroup is suing AT&T, claiming that it has domain over that use of “Thanking.” Because “thank you” is such a common phrase, Citi only has exclusive rights to its usage in very particular contexts. (Unless the reason they’re so wealthy is because they do get a nickel every time someone says thank you!?) Now, AT&T is attempting to trademark “AT&T THANKS.” In this lawsuit, Citigroup is claiming that AT&T’s marketing campaign is “confusingly similar to Citigroup’s ‘THANKYOU Marks,'” and Citigroup is attempting to block AT&T’s trademark.

Take a look at the two programs yourself: the Citigroup Thank You program has scores of gift-cards, vacations, and gadgets you can buy with points awarded through your citi card. The AT&T “Thanks” promotion includes offers like “buy one get one free” movie ticket ‘twosdays,’ along with pre-sale access for LiveNation and exclusive TV content.

If AT&T can prove that it’s unlikely consumers will be confused between the two programs, then it will be able to keep its own usage of “THANKS.” If Citigroup shows that the trademark is being used unfairly, its claim to the words “THANK YOU” is bolstered in other related services. The hearing date has not yet been set in this case, so if you’re waiting to hear what happens, I can only THANK YOU for your patience. And there’s no word yet on whether Alanis Morissette has been served a cease and desist letter from Citigroup.

Sean Simon

Sean Simon is an Editorial News Senior Fellow at Law Street, and a senior at The George Washington University, studying Communications and Psychology. In his spare time, he loves exploring D.C. restaurants, solving crossword puzzles, and watching sad foreign films. Contact Sean at SSimon@LawStreetMedia.com.

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Supreme Court Rejects Authors Guild Challenge Against Google Books

Kevin Rizzo — Tue, 19 Apr 2016 19:08:17 +0000

"Google HQ" courtesy of [Spiros Vathis via Flickr]

As the Supreme Court declined to hear the Authors Guild challenge of Googles Book’s digitizing program on Monday, a legal battle that lasted for over a decade comes to an end. The court’s denial to hear the case will leave in place an appeals court decision that upheld Google’s book scanning program as a fair use of copyrighted works. In its decision not to take up the case, the Supreme Court also avoided making a sweeping ruling on copyright law in the digital age.

“Today authors suffered a colossal loss,”Authors Guild President Roxana Robinson said in a press release after the Supreme Court’s decision. “We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes,” Robinson said of the longstanding legal dispute. But advocates like the Electronic Frontier Foundation (EFF) have strongly supported Google’s project. The EFF concluded, “All in all, it’s a good day for fair use” after the circuit court ruled in favor of Google–the ruling that the Supreme Court’s decision now leaves in place.

Back in 2004, Google undertook an effort to digitize millions of books in order to create a database to help bolster the company’s dominance in the internet search market. Google also argued that it was providing a public service because it would help people discover existing pieces of writing. The project began as a collaboration with libraries to create searchable versions of works in the public domain, but it also expanded to include works currently under copyright.

At the heart of the issue is the question of whether or not Google’s project falls under the category of fair use, a legal doctrine that allows for copyrighted works to be used when serving certain public interests. The suit began back in 2005 when the Author’s Guild took issue with Google’s digitization project, arguing that the company would illegally take away authors’ profits. The case became a class action effort in 2012 after authors and copyright holders came together to challenge Google.

The Authors Guild’s primary issue with Google’s program is that the company did not seek out permission from the copyright holder before digitizing their work and making the contents searchable online. Although Google did not make the full text of copyrighted works available online, it did allow users to search for text within books as well as see a limited sample of the surrounding text. The Authors Guild also argues that allowing Google to digitize authors’ books without permission for its own profit is a clear violation of copyright law.

Google’s profit from the project was a major issue earlier on because the company initially displayed advertising in search results and on individual book’s pages. Although the two parties reached a sort of compromise to share ad revenue, Google eventually ended the program, noting that it wasn’t a major source of revenue. The two sides nearly settled the entire case back in 2011, but a New York district court judge rejected it, arguing that the arrangement would have given Google a de facto monopoly.

After rejecting the settlement deal, the New York district court ruled in favor of Google, saying that the way Google digitized and uses the books in its search engine constitutes a transformation in the context of fair use. In his opinion, which issued summary judgment to Google dismissing the Authors Guild complaint, Judge Denny Chin ruled in favor of Google, saying that its project

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

After the district court ruling, the Authors Guild appealed to the U.S. Court of Appeals for the Second Circuit, which also ruled in Google’s favor. Ultimately, the Guild appealed to the Supreme Court, but after its decision not to take up the case on Monday, Google Books will now remain intact.

The court’s decision also reflects a reluctance to issue a major ruling on fair use in the age of the internet. The authors involved in the lawsuit claim, “the internet was not anticipated” when modern copyright law was written back in the 1970s and that the court needed to settle the issue. In light of the recent decision, we’ll likely have to wait for another high-profile case to make its way to the Supreme Court before to get a better understanding of the relationship between copyright law and the internet.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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Minogue vs. Jenner: Who Will Win the Trademark for the Name “Kylie”?

Alexis Evans — Mon, 29 Feb 2016 20:45:10 +0000

Image Courtesy of [Disney | ABC Television Group via Flickr]

Nowadays, when you say the name “Kylie” most people assume you’re referring to the the lip-injected youngest sister of the Kardashian/Jenner clan, Kylie Jenner. But have we already forgotten that up until a few years ago, the “Kylie” we all couldn’t get out of our heads was none other than Australian dance-pop singer Kylie Minogue? Well Minogue has no problem stepping in to remind us, as she prepares to stop Jenner from trademarking their shared name.

Hello….. My name is KYLIE #lightyears

— kylie minogue (@kylieminogue) February 28, 2016

Minogue threw shade at the 18-year-old “Keeping Up With The Kardashians” star, calling her a “secondary reality television personality” in a notice of opposition to Jenner’s trademark application filed last week. The singer argued that allowing Jenner to have the trademark would cause confusion for her fans and dilute her brand. She supported her claims by referencing criticism of Jenner from disability rights groups and African American communities.

Kylie Minogue is NOT happy about Kylie Jenner trademarking their name: https://t.co/038GZtBadK pic.twitter.com/Oqma75BeN4 — Cosmopolitan (@Cosmopolitan) February 29, 2016

According to CNN, Jenner filed an application to trademark her name in May 2015 for “entertainment in the nature of providing information by means of a global computer network in the fields of entertainment, fashion and pop culture.”

To be honest, the move makes sense. From a brand perspective, Jenner is killing the game. She’s one of the most followed people on social media, and already has a knack for entrepreneurial pursuits. Her newly launched liquid lipstick company, Kylie Cosmetics is so hyped up that it can’t even keep product on its site for longer than 10 minutes. Therefore, trademarking her name would be a good business move that would give her protection in using “Kylie” for advertising purposes.

Still she’ll have to put up a fight if she wants to stop Minogue from snagging the name herself. Minogue is no stranger to trademarks, and already owns the terms “Kylie Minogue,” “Kylie Minogue Darling” (the name of her perfume brand) and “Lucky – the Kylie Minogue Musical,” and the domain name kylie.com.

It’s hard to tell which Kylie, if any, will prevail, but it looks like they’re both in for a fight!

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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Woman’s Reputation Ruined After Her Photo is Misrepresented Online

Alexandra Simone — Mon, 22 Feb 2016 21:56:26 +0000

"System Lock" courtesy of [Yuri Samoilov via Flickr]

Imagine waking up one morning to find a picture of yourself all over the internet atop a negative, satirical article with thousands of comments. You probably wouldn’t be too thrilled. This nightmare became a reality for 22-year-old mom Karena Bennett, who stumbled across a photo of her with her family after her first son was born featured in an article about a made-up mom, named Anita Sullivan, who supposedly had 14 kids with 14 different men.

Bennett encountered the article after she was tagged in a Facebook post by someone she used to work with. Confused as to why she was being tagged, Bennett clicked on the link and was shocked to see her photo at the top of the page.

Posted by World News Daily Report on Wednesday, February 17, 2016

The article–which, just to be clear, is a satirical piece posted on a satirical website–quickly went viral. People all over the internet shared, retweeted, and posted the story, which is how Bennett found it so quickly. She was horrified to find out that this story had people all over the world thinking that she had 14 children with fourteen different men.

Even though they didn’t use her real name, Bennett is still worried that people on the street might recognize her and call her out for being the made-up mother from the article. In an interview with the Detroit Free Press, Bennet said that this story has tainted the picture of one of her fondest moments:

It was definitely a big shock. I guess it is what it is. Sometimes I feel like it isn’t such a big deal…It just stinks. I feel like I’ll never officially get everything down … It’s just hard. … It’s just still out there, and people are still commenting.

To the writers at World News Daily Report (WNDR) who put up this article, Bennett has this to say:

It’s unfortunate because some people could think this is harmless, but it isn’t. It can just keep circulating and circulating. I’m sorry, but someone has to take action.

In an attempt to hold someone accountable for disregard of her privacy and personal photos, Bennett reached out to several of her friends and family members who are attorneys to see if there was any kind of legal action she could take–she’d like to sue the website for defaming her character. Unfortunately, none of the people whom she spoke to have the skills to manage a case like this. Internet-related offenses are difficult to resolve and they often require a lot of time and money, which victims rarely have. Not to mention that issues like these are relatively new, with little precedent to help clarify new legal questions.

World Daily News Report also has a legal disclaimer on its site about its content:

WNDR shall not be responsible for any incorrect or inaccurate information, whether caused by website users or by any of the equipment or programming associated with or utilized in this website or by any technical or human error which may occur.

WNDR assumes however all responsibility for the satirical nature of its articles and for the fictional nature of their content. All characters appearing in the articles in this website – even those based on real people – are entirely fictional and any resemblance between them and any persons, living, dead, or undead is purely a miracle.

Given the nature of the website, it seems unlikely that Bennett will receive any kind of compensation from WNDR. The real bummer here is that the emotional damage will never really be resolved. One of the worst consequences of the story going viral is all the nasty comments from those who thought the story was real. Several people also took to social media to share their opinion of her:

Anita Sullivan Jones broke a World Record by giving birth to her 14th child. https://t.co/3gAxvHzMNJ Record breaker indeed, or prostitution?

— Comrade. (@Nensoo_vission) February 19, 2016

https://twitter.com/BrownieLove75/status/700688057926717440

Bennett hopes all the chatter will die down soon and this whole nightmare won’t come back to haunt her later in life. She hopes that people will realize that the article featuring her photo is satirical (not to mention that it’s not actually about her) and will stop making ridiculous accusations about her family and moral judgment.

In the age of fast-spreading information and anonymity on the internet, it’s easy for people to be targeted without even knowing it. This story should teach all of us a lesson about protecting personal information, photos, and videos as much as possible online–otherwise, you never know where it might end up.

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

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When The Show Can’t Go On: Dissecting Music Industry Contracts

Jillian Sequeira — Thu, 18 Feb 2016 19:10:53 +0000

Image courtesy of Eva Rinaldi; License: (CC BY-SA 2.0)

Pop singer Kesha will appear in court next week to hear the judge’s decision on her contract with her producer Dr. Luke. In October 2014, the singer filed a lawsuit against the producer for sexual, physical and emotional abuse. He responded by filing charges against her for defamation–which were dismissed by a New York judge earlier this month (although the suit Dr. Luke filed in Tennessee is still active). As the legal battle has played out over the past two years, Kesha has suspended her musical career, not by choice, but because her contract with Dr. Luke’s company prevents her from recording with another label. The social media campaign #FreeKesha has picked up considerable momentum in the past several months and has raised questions about how much power managers and producers have over the artists they work with. Controlling a musician’s contract means control not only over their creative process, but often over their finances. Read on for a look at who controls royalties in the music industry.

Contracts in the Music Industry

When an artist signs a contract with a record label, they usually give the company ownership of the copyright on their music for the full life of the copyright. This leaves artists vulnerable because it designates even unreleased music as the property of the label. One notable artist who has secured a reversion of this copyright is Robbie Williams, who managed to secure the return of his “masters” in the contract he signed with EMI–ownership of his albums will eventually return to Williams rather than the label. In exchange for relinquishing their copyright, artists are given royalties–which are based on record sales. Artists receive a full royalty rate for any album they sell through normal retail channels but may receive only a fraction of that royalty for records that are sold at a discount rate or through a record club. Artists are also often expected to pay a producer’s royalty out of their own royalty share. While record companies aim to make royalty rates as attractive as possible, as attorney Anthony N. Luti explains, there are hidden cuts to royalties that all artists may face:

Artists normally get no royalties on records given away free for promotional purposes ‘All-in’ royalty rate deductions: most royalty rates are ‘all-in.’ This means that you must pay the producer out of your royalties. Typically, a producer will take 3 points (3%) which lowers your royalty rate even further. ‘Packaging’ deductions: the theory behind this deduction is that the band pays for the packaging of the CD and tape. Typically, these deductions range from 15 to 30 percent of your royalty rate. As a result, a 12% royalty rate and a 25% packaging deduction lowers your actual royalty rate to 9%.

A recording contract is more than just the exchange of recorded music for royalty payments. Recording contracts almost always require the artist to sign an exclusivity agreement with the label. If an artist wants to collaborate with another artist (particularly one on a different label) they will need to have a “sideman” clause built into their contract. The contract also dictates the territory where an artist can distribute music, tour support, and promotion of the music once it is released. Terminating the contract is a complex process. Hyper successful artists can sometimes afford to break their contracts or renegotiate them to a better financial position, but most artists are locked into an initial contract. A 12 month contract may not seem like a major commitment but when a record label constantly renews the contract, the company can retain the rights to years worth of creative work, even if the album is never released to the public.

Technology Changing The Game

Music royalties and administration are becoming more equitable thanks to technological advances, and now online companies help close the gap between artists and other services. One prime example is Music Reports, a global music administrative rights platform that has created a neutral transaction platform where music producers can handle rights administration and accounting. In a recent interview with Law Street, Bill Colitre, Music Reports’ VP of Business & Legal Affairs, discussed how recording houses once controlled the relationship between buyers and sellers. Thanks to the advent of the Internet, the music publishing community can now set rights and prices via online platforms.

Colitre also described how the Internet has tapped into worldwide creativity, letting new entrants participate in a market that they traditionally took a backseat in. The global connectivity of the twenty-first century is making a historically rigged game increasingly equitable. The assemblage of music rights and information online let artists and producers have greater control over their products while online financial services help them get paid faster and more efficiently. However, even with access to better accounting, most artists are still vulnerable to exploitation if they have not negotiated their contracts correctly.

Promoting Music Without a Record Label

Choosing to forgo a record deal does let artists retain control of their copyright but it also cuts them off from the promotional power that only an established label can provide. Self-released albums often rely on a marketing agency to promote them. Without the infrastructure of a traditional record company, artists have no way to meet DJs and promoters who can connect their album with the listening public.

British rock band Enter Shikari cracked the U.K.’s top five charts in 2007 with a self-released album and rapper Dom Kennedy reached the U.S.’s top five in 2013 but have neither have maintained that level of commercial success over time. Macklemore and Ryan Lewis made a name for themselves by promoting their album “The Heist” without signing onto a record label but their claim to indie fame is not entirely factual. The duo hired Alternative Distribution Alliance (ADA), a branch of the Warner Music Group, to promote their album.

Numerous artists who achieved commercial success with a major label chose to build their own record companies after their contracts expired, but they only were able to establish their own brands once they had built a significant popular following. OK Go was fortunate enough to break with their initial record label right as they released their third album–they were able to re-release the album off of their new label, using the publicity they had received from their original label to kickstart their own enterprise. Cyrus’ recent Dead Petz album was created without financial or creative assistance from her RCA team, but she is fortunate enough to be in a position where she did not need that kind of support from the label (and the label did go on to promote her album, despite its lack of involvement in its creation). Both Peter Gabriel and the Who have self-released albums, but the success of those records was built on the fame they had already garnered from the years during which they were tied to a label.

Conclusion

There are a host of reasons why a record label might delay or block an album’s release but no matter how it happens, gagging a musician is usually legal under the contract they signed. The shifting metrics of the music industry–from physical records to digital albums to streaming–provide new opportunities for artists but don’t necessarily guarantee more relaxed recording contracts. Kesha is not the only artist to speak out about restrictive contracts–Jojo, who only returned to creating music recently, has stated that she was unable to release music for years because of a contract she had signed when she was a minor and Sky Ferreira‘s label pushed her album release date back again and again. For major artists who have already built a successful brand, record labels may be more willing to provide them with flexible contracts that they can renegotiate or terminate without massive legal penalties. However, for artists who are just breaking into the music scene or who are looking to retain a degree of creative and financial control, recording contracts can still be so restrictive that they undermine that artist’s ability to work.

Resources

Sound on Sound: Recording Contracts Explained

The Wall Street Journal: Pop Star Robbie Williams Signs a Massive EMI Deal

Luti Law Firm: Recording Contracts 101: The Basics

NPR: The Real Story Of How Macklemore Got ‘Thrift Shop’ To No. 1

NPR: To Sign Or Not To Sign: Artists Big And Small Face The Label Question

Billboard: U.K.’s Enter Shikari Scores Without Label

Fobres: How Rapper Dom Kennedy Made It Without A Record Deal

Paste Magazine: 14 Artists who Launched Their Own Labels

Music Times: Miley Cyrus’ Surprise New Album Surprised Her Label RCA Records

Huffington Post: OK Go Talk Creative Music Videos and Life Without a Label

US: JoJo Claims ‘Bad Contract’ Meant She Couldn’t Release Music, ‘Didn’t Legally Own’ Her Own Voice

Buzzfeed: What It’s Like When A Label Won’t Release Your Album

Jillian Sequeira

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Surfing Dogs and Stolen Photos have Lauren Conrad in Hot Water

Alexandra Simone — Fri, 05 Feb 2016 19:47:14 +0000

"Lauren Conrad" courtesy of [bethanyislike via Flickr]

This week, in weird (and mostly irrelevant) legal news, Lauren Conrad is being sued for having several photos of surfing dogs on her website, without having any kind of copyright permission to do so–what a tragedy.

The “Laguna Beach” superstar allegedly used these photos without permission from the company that owns them, Incredible Features Inc. (IFI). The company, which claims to provide “unique images for the curious mind,” found these photos in a blog post on Conrad’s site from October of 2014, and decided to file a lawsuit against her for this violation of copyright law.

Pause. Let’s talk about copyright laws for a moment, to better understand what Conrad’s actions actually mean. As far as a basic overview goes, copyright laws are in place to protect intellectual property, which is defined by Merriam Webster as “property (as an idea, invention, or process) that derives from the work of the mind or intellect.” What exactly qualifies as intellectual property then? Pretty much anything you can think of that comes from an idea someone had–images, songs, graphics, designs. The list could go on and on.

Be warned! Just because something isn’t registered with the Library of Congress Copyright Office doesn’t mean it’s fair game, either. People hold the rights to their own intellectual property starting the second they create it, unless they give express permission for others to use and share whatever the item may be–in this case, pictures of surfing dogs. Honestly, this is probably where Conrad went wrong. In the age of easily accessible media it’s so simple to right click, download, and re-upload pictures from almost everywhere. People frequently forget that using other people’s property without their permission is a serious problem–one you can be sued for.

IFI wrote some pretty ironic lines in its request for Conrad to take the pictures down:

In the dog eat dog world of online content … Lauren Conrad, a sophisticated website operator, is cognizant of the value of high-quality photography.

Ah, the classic dog eat dog world pun. In addition to wanting Conrad to take the photos down (which it appears she already has), IFI is asking that she pay whatever money she may have earned thanks to using the photos of the adorable aquatic pups. Conrad’s response to this whole situation are still pretty unclear. TMZ, the original releaser of these lawsuit details, claims it reached out to Conrad for comments, but hasn’t heard back from the star yet.

The moral of the story here is to pay attention to the things you’re putting on the the internet and make sure you are using other people’s material appropriately. If you don’t? You might end up getting sued, and who in the world has the time for that. I mean, come on, it’s not that hard to find fun media of dogs surfing that you can use without getting into trouble!

Alexandra Simone

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British Judge Rules Nestle Can’t Trademark the KitKat Shape

Anneliese Mahoney — Mon, 25 Jan 2016 17:16:33 +0000

Image courtesy of [aulia.m via Flickr]

Everyone knows the shape of a KitKat bar–but can Nestle (KitKat’s parent company) legally keep people from replicating it? According to a British judge, the KitKat shape can’t be trademarked–the decision was just handed down earlier this week.

Apparently this has been a long legal saga in Europe, with Nestle bringing attempts to trademark the KitKat shape to both the British High Court and the European Court of Justice. Nestle first tried to trademark the shape back in 2010, in an attempt to keep competitors, particularly Cadbury, from making chocolate bars in similar shapes.

However, Judge Arnold of Britain’s High Court ruled that the shape of KitKat hadn’t “acquired a distinctive character” to the point where it could be trademarked. The big legal question was whether or not someone could look at a KitKat bar and know what it was, even without any distinctive markings or packaging. Judge Arnold pointed out that Nestle had never promoted the shape when marketing the KitKat bar, and the bar’s wrapping obscures the shape. He stated in his ruling that while the shape may be distinctive, it isn’t the only thing that consumers use to identify the candy bar, stating:

In these circumstances it seems likely that consumers rely only on the word mark KitKat and the other word and the pictorial marks used in relation to the goods in order to identify the trade origin of the products. They associate the shape with KitKat (and therefore with Nestlé), but no more than that.

The idea of trademarked a candy bar shape isn’t totally crazy though; some cases have been successful in the past. For example, Toblerone, which does have a distinctive mountain-like look, has been able to trademark its shape.

This case also wasn’t the first time that European candy companies have gone head-to-head over seemingly arbitrary intellectual property claims. In 2013, Nestle and Cadbury tussled in court over Cadbury’s attempt to trademark the shade of purple it uses for its chocolate wrappers. Cadbury wasn’t successful at that attempt, either.

So for now, it seems like the case of the KitKat shape is decided (at least in European courts) but Nestle is promising to appeal the suit. At this point though…”Gimme a break.“

Update: An earlier version of this post used the term “copyright” instead of “trademark.” The language has been updated.

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Monkeys Can’t Copyright Selfies…Yet

Anneliese Mahoney — Thu, 07 Jan 2016 20:06:52 +0000

Image courtesy of [photos_mweber via Flickr]

It’s an interesting case that refuses to die. Described by NPR as “the legal saga of the monkey selfie,” U.S. District Judge William Orrick just issued a provisional opinion that a macaque named Naruto can’t legally copyright some selfies he snapped in a nature reserve in 2011.

The pictures in question do have all the attributes of a selfie.

Judge rules on whether monkey owns rights to famous “monkey selfie” photographs https://t.co/b6vY3jDLiu pic.twitter.com/bSNKXtdivi

— CBS News (@CBSNews) January 7, 2016

They were taken with wildlife photographer David Slater’s camera, in a wildlife reservation on the Indonesian island of Sulawesi. However, Slater wasn’t the one who “took” the pictures, Naruto did. PETA, who filed the lawsuit on Naruto’s behalf, claimed that the monkey knew what he was doing. The lawsuit argues that Naruto had seen guests to the reserve taking photos, and that his actions included “purposely pushing the shutter release multiple times (and) understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

But Slater claims that he has the rights to the pictures, and that he was holding onto the tripod while Naruto took the photos. He used it in a 2014 book of wildlife photography, and has a British copyright license for it. But some media sites, including Wikipedia, have argued that the photos are public domain because no one owns the copyright.

But despite all that confusion, one thing is clear: Orrick wasn’t going to let PETA get away with filing a copyright on behalf of a monkey. Although a formal opinion will be issued by the judge later, he did issue a provisional opinion Wednesday. Orrick stated: “while Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act.” On that note, the U.S. Copyright Office has actually officially started listing “a photograph taken by a monkey” as something that specifically cannot be copyrighted.

So, it doesn’t seem like we’ll be seeing an influx of monkey (or for that matter, other animal) copyrights anytime soon. But since monkeys can apparently take selfies, maybe this is a law that Congress will need to consider changing.

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Navajo Nation to Continue Lawsuit Against Urban Outfitters

Anneliese Mahoney — Tue, 29 Dec 2015 19:22:25 +0000

Image courtesy of [stephanie ★ via Flickr]

Urban Outfitters: it seems like every week or so the retailer is making headlines for pissing someone off. Whether it’s marketing a Kent State sweatshirt seemingly covered in blood spots, selling a shirt that proclaims “Eat Less,” or asking its employees to come in and work without pay, the brand is almost always under fire. But now it may have to pay for its controversial practices–the Navajo Nation is suing Urban Outfitters for marketing some products as “Navajo”–and a federal judge just agreed to let the suit move forward.

The lawsuit was originally filed in 2012 in a U.S. District Court in New Mexico by the Navajo tribe. The tribe took issue with the products sold by Urban Outfitters that were labeled as “Navajo”–they included items such as clothing, jewelry, and accessories. Urban Outfitters used the Navajo name on products that the Navajo tribe argued were offensive–including a Navajo Print Fabric Wrapped Flask, despite the fact that the sale and consumption of alcohol are banned on the reservation located in Southwestern United States. The tribe also took issue with the “Navajo Hipster Panty.”

What, you don’t like Navajo patterned panties and booze flasks? Huh! “@ailsasachdev: Argh Urban Outfitters!!! pic.twitter.com/cpbhFQouti”

— Maria La Ganga (@marialaganga) September 16, 2014

It’s Navajo Nation v Urban Outfitters #IntellectualProperty #trademark via @TheFashionLaw pic.twitter.com/LRJjorhqPC http://t.co/gQYhJwDQp8

— Marksmen (@MarksmenTweets) October 6, 2015

While the products were removed from Urban Outfitters after the tribe sent a cease-and-desist letter, the tribe still decided to file suit. The tribe’s complaint accuses Urban Outfitters of alleged trademark violations, unfair competition, and violation of the arts and crafts act.

The act being referred to is the Indian Arts and Crafts Act, which was enacted by Congress in 1935. That act makes it illegal to sell products that imply or falsely suggest that they were made by American Indians when they were not. According to the Farmington Daily Times:

Under a 1990 amendment, tribes received the right to bring lawsuits against any person or entity who sells a product ‘in a manner that falsely suggests it is Indian produced, an Indian product or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.’

Additionally, the Navajo Nation has a number of trademarks that cover the use of the name “Navajo.”

However, Urban Outfitters fought back against the lawsuit, claiming that the tribe couldn’t show that any injury was done to it when the company used the name “Navajo.” However, it was based on that claim that U.S. District Judge Bruce D. Black just ruled that the tribe does have standing to move forward with its lawsuit. So, the lawsuit will continue, and Urban Outfitters is going to have to come up with another way to avoid paying a big penalty for its use of the Navajo Nation’s trademark and name. But, given its track record, I’m sure we’ll see Urban Outfitters in the news again soon.

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Spoiler Wars: What Should Entertainment Websites Publish?

Jillian Sequeira — Thu, 24 Dec 2015 16:36:12 +0000

Image courtesy of [Anime Nut via Flickr]

To no one’s surprise, “Star Wars: The Force Awakens” broke box office records around the country and around the world over the weekend. As perhaps the most anticipated film of the year, its release has dominated both print and online media. Some websites are treading very carefully, aiming not to spoil any content for readers who have not yet seen the film. It’s an admirable goal–but what’s the legal side of the spoiler debate?

In an interview with Buzzfeed UK, Harrison Ford asked moviegoers not to ruin the film for others, but it is difficult for websites to avoid publishing content on a film that is dominating online discussions. During a week when the question on everyone’s lips is not if you will be seeing “Star Wars,” but when–what else would entertainment bloggers be writing about?

For a film that has already made profits off of its opening weekend, spoilers are not a threat to commercial success. Yet for films with smaller budgets, the exposition of a plot could be a financial death sentence. Why go see the film if its summary is available online? Websites like Wikipedia and IMDB often post plot summaries of films quickly after they are released, and many entertainment websites post articles about films before they are released in theaters that discuss major plot points under the heading “spoiler alert.”

I personally would not want to pay admission for a film I already knew the plot of. In an era where films are freely available for illegal download or are released directly to a streaming service, fewer young people set time and money aside to go to the movie theater. When the plot of a major film is revealed online, paying admission price seems foolish. A film such as “Star Wars,” with plenty of die hard fans who are so loyal to the franchise that they prefer to see it in theaters, has no trouble breaking even, but films with smaller budgets and a less-publicized release may not attract such dedicated viewers. That being said, film studios have not launched legal action against bloggers who reveal the plot of their films in the same way they do against people who illegally film or download their films. Five separate Hollywood studios have filed for damages against Megaupload founder Kim Dotcom, who is currently facing extradition to the United States, but no studio has brought a case against an online platform for “spoilers.”

Spoilers present an interesting copyright issue for web sources. Filming a scene from a movie in the theater and uploading it would be considered piracy (and could be removed from a content sharing website by the host), but can a written description of the scene be treated the same way? What is the line between writing a review and revealing a pivotal plot point? There is no set rule for when a film’s plot is considered part of the public domain, or when a spoiler becomes common knowledge. How can copyright law ever regulate written descriptions of a film if there is no clear limit on how much a writer is allowed to reveal?

Piracy has a flexible definition that is constantly adapting and expanding as the worldwide web incorporates more forms of media, but I doubt it will ever encompass movie reviews. At the end of the day, movie reviewers are tasked with describing a film and it is perfectly within their rights to do so in as much detail as they want. Hordes of Star Wars fans may have cut themselves off from their favorite websites to avoid spoilers this week, but that hasn’t made a significant dent in internet traffic on major entertainment websites. Spoilers are inconvenient and frustrating, but they are ultimately an inescapable part of internet culture, embedded in the Web, and probably won’t face any legal action anytime soon.

Jillian Sequeira

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Appeals Court Okays Trademarking Offensive Names: How Will it Affect the Redskins?

Anneliese Mahoney — Wed, 23 Dec 2015 16:52:35 +0000

Image courtesy of [Bill Dickinson via Flickr]

Update

The trademark–and public opinion–war over the Washington Redskins has been waging on for a while. But there’s a new development in the form of a ruling from an appeals court that may impact the Redskins’ ability to keep their offensive name. The U.S. Court of Appeals for the Federal Circuit in Washington, D.C. just struck down a provision of federal law that prevented the copyrighting of offensive names on First Amendment grounds.

The case in front of the appeals court involved a band called “The Slants,” an Asian-American group led by a man named Simon Tam who chose their name in an attempt to “reclaim” the traditionally-derogatory phrase.

The Slants, Asian-American band from PDX, can trademark controversial name, U.S. court rules https://t.co/AjahNdAxAW pic.twitter.com/b8QMi4hWLP

— The Oregonian (@Oregonian) December 22, 2015

The band became embroiled in a legal dispute after it attempted to file for trademarks; the United States Patent and Trademark Office (PTO) refused the filing. Particularly at issue was something called the Lanham Act, which was passed in 1946, and “prohibits registration of marks considered scandalous or immoral.” However, the recent appeals court ruling decided that parts of the applicable section (2a) were unconstitutional, stating:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech. We therefore vacate the Trademark Trial and Appeal Board’s (“Board”) holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings.

Obviously the case of the Slants and the case of the Washington Redskins are very different–one is a band using a racial slur in an effort to reclaim it, the other is a massive sports franchise using a racial slur despite its implications. Those nuances exist in a socio-political sense, but in a legal sense, the cases are very similar. The appeals court didn’t rule that the Slants could use their name because of the way they were using it, but rather because of First Amendment issues–ones that also could apply to the Redskins.

The Washington Redskins’ case is under review by the 4th Circuit Court of Appeals, and some legal experts have predicted that it may make its way all the way to the Supreme Court. Since the Lanham Act was passed over 60 years ago, a lot has changed, including the inception of Constitutional protection for commercial speech. But given that the Redskins’ case–which is based on very similar grounds–is making its way through the court system, the fact that another appellate court found that the applicable provisions of the Lanham Act were unconstitutional could end up being pretty convincing for the court hearing the appeal. Ultimately, the question of “offensive speech” as it relates to trademarks is far from being answered.

Update

In light of the Redskins’ recent win that garnered the team the NFC East title, the debate over the team’s name remains hot and heavy. I got the chance to talk about the case with Professor Robert Sherwin, who teaches at Texas Tech University School of Law, and is an expert in federal civil procedure and First Amendment Law. He pointed out that while this ruling may not necessarily persuade the federal judges in the Redskins trademark case, the fact that the U.S. Court of Appeals for the Federal Circuit in Washington D.C. accepted that part of the Lanham Act is unconstitutional–and was the first court to do so–is noteworthy. Sherwin also shared that this is likely “a big ticket kind of case” and an issue headed for the Supreme Court, although it’s yet to be seen which case the Supreme Court will decide to take on.

Sherwin also highlighted a similar First Amendment Case, decided by SCOTUS just last summer–Walker v. Texas Division, Sons of Confederate Veterans, Inc., in which the court decided 5-4 that the government wasn’t violating free speech when it rejected a Confederate Flag license plate design. However, in a move that surprised many, it was Justice Clarence Thomas who sided with the more traditionally liberal wing of the court to decide that it was not a First Amendment violation. Sherwin pointed out that both sides could use Walker in their arguments, and that the decision could hinge on Thomas, who is “probably the court’s foremost expert on First Amendment issues” when the case makes it the Supreme Court.

There’s a lot that’s up in the air right now when it comes to the Redskins’ name–the recent decision as it relates to the Slants may have only further muddied the waters. But one thing seems almost inevitable to many of us keeping an eye on these cases–this is something that the Supreme Court will have to weigh in on sooner or later.

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YouTube is Standing up to Copyright Bullies and Protecting Fair Use

Anneliese Mahoney — Thu, 19 Nov 2015 21:59:23 +0000

Image courtesy of [Rego Korosi via Flickr]

YouTube is a form of media that’s in many ways built on creativity–from reaction videos to remixes to fan tributes, YouTube is home to many adaptions of other works. But whether or not those types of videos are legal has long been a hot topic of debate. YouTube itself is now getting involved and backing the principles of Fair Use, which protect adaptions, by offering legal and financial support to some content creators who have been targeted by particularly predatory takedown notices.

Fair Use is the legal doctrine that allows the use of copyrighted material in certain circumstances. As defined by YouTube it includes uses like criticism, commentary, educational purposes, or news reporting. YouTube also lays out other factors that usually go into deciding whether or not something can legally be deemed Fair Use–pointing out, for example, that the use of shorter clips tend to be decided as Fair Use more often than longer clips. Additionally YouTube explains how to determine if a use is “transformative,” usually a big sticking point for courts asked to decide Fair Use questions, stating:

Courts typically focus on whether the use is ‘transformative.’ That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

Despite the fact that this is all a fairly normal and accepted definition of Fair Use (although instances are usually decided on a case-by-case basis) some YouTube users are continually subject to copyright infringement claims under the Digital Millennium Copyright Act (DMCA). While that act was originally created to prevent piracy, it has been used in abusive fashion in some cases. The process for DCMA-based takedowns has become automated, making it harder for content creators who are affected to fight them.

So, YouTube has decided to pay some legal bills and offer legal support up to $1 million in instances where there are “clear fair uses which have been subject to DMCA takedowns.” For example, YouTube will provide support to the Ohio Chapter of Naral Pro-choice, a pro-choice advocacy organization. They were given takedown notices after using a clip of a committee meeting in a video criticizing local law makers in a video posted to YouTube. Another example of a type of video that YouTube will help to protect is a series made by Constantine Guiliotis, who debunks instances of UFO-sightings. While he uses others’ clips, he does so in a way that should be considered Fair Use.

YouTube explained its motivation for helping those who have been targeted by the takedown notices. YouTube’s Copyright Legal Director, Fred von Lohmann, stated: “we’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.”

Fair Use certainly is a tricky gray area–and there are certainly many cases in which copyrights need to be protected and plagiarism and piracy run rampant. However, abusing the DMCA also isn’t the answer. By aiding those who deserve it, YouTube draws a fair line between potential abuse on both sides.

Judge Shakes Off Suit Against Taylor Swift Using Her Lyrics

Kevin Rizzo — Fri, 13 Nov 2015 14:00:00 +0000

Image courtesy of [Jana Beamer via Flickr]

A $42 million lawsuit against Taylor Swift officially failed in court on Tuesday, as a California Central District Court Judge artfully put the case to bed. At the end, what began as multi-million dollar lawsuit ended with a judge quoting Taylor Swift lyrics in her dismissal of the case.

Jessie Graham, whose real name is Jessie Braham, sued Swift for copyright infringement, alleging that her song “Shake it Off” is a rip-off of his song “Haters Gone Hate.” Magistrate Judge Gail J. Standish disagreed, saying in her dismissal, “At least for the moment, Defendants [Swift and her record label] have shaken off this lawsuit.”

Before we get into the details, it’s important to recognize just how ridiculous Graham’s arguments are. He claimed that Taylor Swift copied lyrics from his song “Haters Gone Hate.” You can listen to the song for yourself to see how similar it is:

In her dismissal, Judge Standish says that she could only find two or maybe three similarities between the two songs–the phrase “haters gone/gonna hate,” the phrase “Players/playas gone/gonna play,” and “some lyrics referring to fakers faking people.” But simply having the same words or phrases is not enough to win a copyright claim. More importantly, such a claim requires the plaintiff to actually demonstrate that the work was originally his. In the dismissal, Judge Standish shows how these phrases were used prior to when Braham’s song was written in 2013. I’m not kidding, she actually goes through the history of “haters gonna hate” and “players gonna play”–from 3LW to popular memes, which she also defines.

To sucessfully show that Swift copied his work, Braham would need to somehow prove that “Shake it Off” would not have been created without his song “Haters Gone Hate.” Doing so would entail proving that Swift had access to his song and that her work is “substantially similar” to his–and if you’ve listened to both songs it’s pretty clear that is not the case.

Judge Standish’ true colors, and quiet possibly her Taylor Swift fanhood, come out in the dismissal’s conclusion. She wraps it up saying:

At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space— one that requires Braham to do more than write his name. And, upon considerationof the Court’s explanation in Part II, Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.

Well played Judge Standish, well played.

See More: Copyrights, Sampling and Rock ‘n’ Roll: Intellectual Property in the Music Industry

Kevin Rizzo

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ICYMI: Best of the Week

Anneliese Mahoney — Mon, 02 Nov 2015 14:56:57 +0000

ICYMI, check out Law Street’s best stories of the week. This week’s top picks include a lawsuit against Subway for the size of its sandwiches, a look at the use of music in political campaigns, and the Sun Sentinel’s scathing op-ed against presidential contender Marco Rubio.

1. Size Does Matter: Subway is Settling Small Sandwich Suit

The jingle is as memorable as it is incredibly annoying. Beginning in 2008, Subway franchises began offering $5 Footlongs, accompanied by a national advertising campaign. The idea that Subway offers foot-long sandwiches is central to the fast food purveyors’ marketing campaigns and reputation. But some discerning consumers noticed that the sandwiches were a little smaller than they expected–and sued Subway over this clearly debilitating issue. The case was originally filed in 2013, but Subway just announced a proposed settlement that will involve it measuring the sandwiches it gives to consumers in order to guarantee that they’re receiving all the food they’re paying for. Read full story here.

2. Campaign Music and Fair Use: What are the Rules?

Securing the appropriate legal permissions to use particular songs on the campaign trail is not always enough. Copyright law and fair use are only part of the equation when it comes to a politician’s right to use music. Many states provide protections for famous artists in regards to their image and false endorsement. In fact, it is possible for a politician to legally possess the minimum permissions to use a song and still face a lawsuit from the artist. Click here to learn about the history of music in campaigns and the legal questions that come up time and time again on the campaign trail.

3. Florida Newspaper to Marco Rubio: “Do Your Job or Resign it”

A Florida newspaper is really pissed with Senator Marco Rubio. In a scorching op-ed published Tuesday evening, the Sun Sentinel’s Editorial Board accused Rubio of “ripping off voters” with his constant absences in Congress. Rubio, who is currently seeking the Republican presidential nomination, has missed more votes than any other senator this year. Read the full article here.

ASCAP: Using Music in Political Campaigns: What you Should Know

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Campaign Music and Fair Use: What are the Rules?

Samuel Whitesell — Mon, 26 Oct 2015 16:42:26 +0000

"Election" courtesy of [Kate Brady via Flickr]

Earlier this month, Aerosmith lead singer Steven Tyler became the third person this year to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. A month earlier, R.E.M. bassist Mike Mills voiced his displeasure at Trump’s use of one of his group’s songs and in June Neil Young asked Trump to stop using his music.

American presidential campaigns have a long history of using music to evoke emotions in audiences. It’s a practice that dates back to the early 1800s and possibly earlier, all the way back to George Washington. Perhaps the most famous example is Dwight Eisenhower’s “They Like Ike” advertisement, which yielded his famous campaign slogan “I like Ike.”

Over the past few decades, however, there’s been a growing trend among songwriters and artists who have come out against campaigns for using their music. The reasons for artists issuing cease-and-desist letters range from disagreeing political views or presenting an image of false endorsement to simply not wanting music played without their permission.

Securing the appropriate legal permissions to use particular songs on the campaign trail is not always enough. Copyright law and fair use are only part of the equation when it comes to a politician’s right to use music. Many states provide protections for famous artists in regards to their image and false endorsement. In fact, it is possible for a politician to legally possess the minimum permissions to use a song and still face a lawsuit from the artist. Read on to learn about the history of music in campaigns and the legal questions that come up time and time again on the campaign trail.

A Brief, Recent History of Campaign Music Fights

Reagan and Springsteen (1984)

As Ronald Reagan campaigned for reelection in the summer of 1984, much of the nation, and in turn Reagan’s presidential campaign, was swept away by Bruce Springsteen’s hit “Born in the USA.” Conservative columnist George Will made a claim to “Born in the USA,” calling it a patriotic, hardworking man’s anthem. Reagan quickly pounced on the opportunity to use the song in his campaign. He was promptly denied the rights to play the song but invoked Springsteen in a speech nonetheless. In a 1994 speech Reagan said,

America’s future rests in a thousand dreams inside your hearts. It rests in the message of hope in songs of a man so many young Americans admire: New Jersey’s own Bruce Springsteen.

The left responded by saying that Reagan and conservatives had misinterpreted the song, claiming that it was a form of protest against the changes that Reagan brought about. Democratic candidate Walter Mondale even believed that Springsteen supported him. However, the song was intentionally crafted to contain both arguments and to be a conflicting piece of music. Ultimately the piece proved to be about disconnection, not belonging to any side, and as a result, probably not the most appropriate campaign tune.

Bush, Petty, and Hall (2004)

The trend in bands and songwriters protesting the political use of their music greatly increased in the 21st century, particularly within the last several election cycles. In 2004, George W. Bush used the songs “Still the One” and “I Won’t Back Down” by John Hall and Tom Petty, respectively. Both artists took offense to the use of their songs for President Bush’s campaign. Hall, later elected as a Democratic congressman in New York, publicly noted that neither he nor his music supported Bush’s reelection efforts.

McCain, Browne, and Mellencamp (2008)

John McCain received several complaints from artists concerning his use of their music, most notably from John Mellencamp for the use of “Our Country,” and Jackson Browne for “Running on Empty.” Browne went so far as to sue the McCain campaign claiming that the usage of the song was not only without permission, but it also suggested that Browne supported the McCain campaign. As a Democrat, Browne naturally objected to supporting the campaign in any way. McCain would eventually settle with Browne and apologize.

Palin and Heart (2008)

Sarah Palin, John McCain’s running mate in 2008, faced a backlash from the band Heart for her use of their song “Barracuda.” Ann and Nancy Wilson (the band’s lead singer and guitarist), asked the campaign to stop using its music, noting, “Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song ‘Barracuda’ no longer be used to promote her image.” Despite their desire to be left out of the campaign, the use of their song continued, most notably at Palin’s introduction at the Republican Convention in 2008. After its repeated use, the sisters issued a statement saying,

The song ‘Barracuda’ was written in the late ’70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.

Charlie Crist and The Talking Heads (2010)

During his senate campaign against Republican candidate Marco Rubio, Charlie Crist used the song “Road to Nowhere” by The Talking Heads on his campaign website and in video advertisements. The group responded with a lawsuit that culminated with Crist issuing a formal apology.

Walker and the Dropkick Murphys (2012)

Both Wisconsin governor Scott Walker and Speaker of the State Assembly Jeff Fitzgerald used the Dropkick Murphys cover of “I’m Shipping up to Boston” at tour stops in 2012 for their campaigns. The band responded to Fitzgerald’s use of their song at the Wisconsin GOP Convention by comparing it to the use of a gangsta rap by a white supremacist.

In 2011, Scott Walker led a campaign to eliminate collective bargaining rights for most state workers, which led to a massive backlash from pro-union organizations and Democrats. A recall election was held in 2012 in which Walker retained his post. Earlier this year, Walker played the same song prior to his speech at the Iowa Freedom Summit resulting in a backlash from the band. Dropkick Murphys, a notably pro-union band, tweeted their response:

@ScottWalker @GovWalker please stop using our music in any way…we literally hate you !!! Love, Dropkick Murphys

— Dropkick Murphys (@DropkickMurphys) January 25, 2015

Obama, Moore, and Lauper (2008 and 2012)

The Obama campaign faced some backlash from Sam Moore, of the band Sam & Dave, for its use of the song “Hold On! I’m Comin'” at rallies. Moore objected to the use of his song by the Obama campaign because he had not publicly endorsed Obama’s election bid, noting that his vote is a private matter. However, Moore did send a letter to Obama proudly noting the historic nature of his campaign.

In 2012, the Obama campaign used Cyndi Lauper’s song “True Colors” in an ad criticizing Mitt Romney and his record. While Lauper was not a Romney supporter, she did not agree with the use of her song in a negative advertisement.

When Can Campaigns Use Music?

To use music in advertisements (television and internet), a campaign needs to receive legal permission from both the song’s publisher and the artist’s record label. The use of music at a live campaign event requires a “public performance” license, generally attained from one of the United States’ performing rights organizations. These organizations track the use of music and help distribute royalties from such events.

Technically, campaigns do not need to receive explicit permission from the artist to use their work, but it should be noted that even if a politician has all the requisite legal permissions the artist can still sue the campaign. The author(s) could make a claim to their “Right of Publicity,” which is a legal protection many states give celebrities and artists. The right of publicity generally protects the use of someone’s name and likeness for commercial reasons. However, this right is not yet nationally recognized. On the federal level, the Lanham Act protects an artist’s trademark or brand by offering protection against false endorsement in which the use of an artist’s work can imply the artist’s support. Politicians and their campaigns also need to acquire proper licensing from the publisher, record label, and venue.

What About Fair Use?

One of the most crucial pieces of U.S. copyright law, created to ensure the protection of free speech, is the doctrine of fair use. Fair use is defined as the copying of copyrighted material done for a “limited and ‘transformative’ purpose,” which may legally be done without the artist’s or license holder’s. However, fair use is loosely defined and limited by various court decisions.

There are two general categories of fair use. The first is commentary, in which a copyrighted work can be used in limited instances to provide examples and clarity–this is most commonly seen in scholarly works. The second category of fair use is parody, in which large sections of an original work may be copied and used in a satirical manner. When fair use claims make it to court, judges employ a four-point test to evaluate how the material was used and what the consequences were. Fair use claims are particularly strong when the use was for educational or informative purposes, or when the original work has been significantly modified to create something new.

When used to set a mood or accompany a politician’s platform, the use of music on a political campaign is generally not protected under fair use. The parody of a popular song for a campaign may constitute fair use, but otherwise artists would still be entitled to the protections established above. Although campaigns are not often afforded fair use protections, these claims are looked at on a case-by-case basis. While there may be some cases in which fair use protects campaigns, generally speaking, that is not the case.

Conclusion

Musicians’ recent outcry against the use of their work for political campaigns is nothing new. However, the number of complaints issued by artists has grown significantly over the past election cycles. These issues may have arisen over the evolution of the fair use and its interpretation in the courts, particularly for music and film. However, it is important to note that political campaigns often do not meet the transformative requirements to constitute fair use when playing music at events or in advertisements. Even if the proper licenses are granted by publishers and record labels, the performing groups themselves may be entitled to protections under the right of publicity and the Lanham Act, meaning their permission is essentially required as well.

In short: if you want to use a song to promote your campaign, talk to the song’s artist, and his or her record label first.

Resources

Daily Kos: When Politicians use Music Without Asking Permission

Jefferson R. Cowie: Stayin’ Alive: Book 2, Chapter 8: “Dead Man’s Town”

USA Today: Candidates Carry a Tune on Campaign Trail

BBC: Aerosmith Protest over Trump Campaign Using their Hit Dream On

The Guardian: REM blasts Donald Trump for Using their Music in US Presidential Campaign

NY Times: In Choreographed Campaigns, Candidates Stumble over Choice of Music

Time: A Brief History of Campaign Songs

Boston: Wisconsin Recall Battle Finally Goes to Voters

Kevin L. Vick and Jean-Paul Jassy: Why a Federal Right of Publicity Statute is Necessary

Stanford University Libraries: What is Fair Use?

Cornell University Law School: The Lanham Act (15 U.S. Code), Subchapter III, Provision 1125: False Designations of Origin, False Descriptions, and Dilution Forbidden

Battlefield Sources: 1952 Eisenhower Political Ad – I like Ike – Presidential Campaign Ad

HardMusicTV: Bruce Springsteen vs Ronald Reagan

Law12345100: Charlie Crist Official Apology to David Byrne for Copyright Infringement

Samuel Whitesell

Samuel Whitesell is a graduate of the University of North Carolina at Chapel Hill having studied History and Peace, War, and Defense. His interests cover international policy, diplomacy, and politics, along with some entertainment/sports. He also writes fiction on the side. Contact Samuel at Staff@LawStreetMedia.com.

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One More (Legal) Reason You Can’t Be Batman

Fri, 25 Sep 2015 14:20:45 +0000

Image Courtesy of [Jo Jakeman via Flickr]

With nearly 13,000,000 likes on Facebook, it comes as no surprise that Batman has a large group of devoted fans who likely relish the idea of traveling in true Dark Knight fashion. Mark Towle, owner of Gotham Garage and manufacturer of functional Batmobile replicas, has made that dream a reality for many loyal fans and avid car collectors. Boasting ticket prices of approximately $90,000, Towle’s vehicles include features such as “custom bat insignias, wheel bats” and a “bat steering wheel.” However, the iconic Batmobile, driven by the comic book hero in his efforts to protect Gotham, is now exclusively available to Batman himself. A court has ruled that the iconic crime fighting vehicle, equipped with onboard weapons systems, has enough distinct character traits to be eligible for copyright protection and holding that Towle’s replicas qualify as infringement.

The U.S. Ninth Circuit Court of Appeals for Central California issued a 28-page opinion, written by Judge Sandra Ikuta, affirming a ruling against Towle, who advertised his vehicles as the “Batmobile” and marketed them on his website batmobilereplicas.com.

DC Comics, who initiated an infringement lawsuit against Towle in May 2011, holds the rights to the Batman character, as well as all of his crime-fighting adventures. Towle argued that the protection of the Batman character does not extend to the car and that The Batmobile, as it appeared in the 1966 television show and 1989 film, is not subject to copyright protection.

However, Ikuta wrote Wednesday that “no matter its specific physical appearance, The Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” Therefore the vehicle qualifies as a comic book character, identifiably distinct by its features and protectable by copyright.

In its decision, the court engaged in some serious (and bad-ass) legal analysis, examining the car’s history of tearing up “the street like a cyclone,” making specific reference to its “jet engine” and referring to the vehicle as a “sidekick.” Careful consideration was given to the “emergency bat turn,” the automobile’s “Batmissle mode” and the “flame-shooting tubes that undoubtedly give the Batmobile far more power than an ordinary car.”

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

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Sing Away: Judge Rules “Happy Birthday” Lyrics No Longer Copyrighted

Anneliese Mahoney — Wed, 23 Sep 2015 18:25:41 +0000

Image courtesy of [Will Clayton via Flickr]

The “Happy Birthday” song has become a ubiquitous part of American life. But, it’s also a song that has a long history of legal copyright strife. However, thanks a recent ruling by a federal judge, the song has been set free–the “Happy Birthday” lyrics are no longer copyrighted, and will not require royalties to be paid for their use.

The history of the song is as long as it is complicated. It was written in Kentucky by two sisters, Mildred and Patty Hill, in 1893. The song has since evolved from the sisters’ original lyrics, but they’re credited with its inception. The song was copyrighted in 1935, by the Clayton F. Summy Co., which was succeeded by a company called the Birch Tree Group. Then, Warner/Chappell purchased the Birch Tree Group in 1988, inheriting the copyright to a song which at that point was almost a century old.

Warner/Chappell has collected royalties on the use of the song anytime it’s used “as part of a profit-making enterprise.” This can include TV shows, movies, or commercials. But Warner/Chappell has also gone after incidences that aren’t expressly for profit, like if a restaurant wants to sing the song while giving a customer a free birthday dessert. A desire to avoid paying those royalties inspired the often odd birthday traditions at many restaurants. George Washington University School of Law professor Robert Brauneis explained to ABC News:

If you want to sing it at your home at a birthday party you don’t have to pay anything, because that is a private performance. But if you want to use it in a television show, a movie, or a television commercial, you’ll pay anywhere from $5,000 to $30,000 for those rights.

It’s estimated that Warner/Chappell has collected approximately $2 million in royalties each year from the “Happy Birthday” song.

But, according to U.S. District Judge George H. King, who ruled in a case brought by filmmakers challenging Warner/Chappell’s claim to the song, that copyright claim doesn’t hold. According to King, the issue with Warner/Chappell’s copyright is that there’s no evidence that Summy Co. ever had a legal copyright on the lyrics in the first place. King wrote:

Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.

So, the issue isn’t completely decided–there will probably be appeals. But for now, “Happy Birthday” appears to be, quite happily, in the public domain.

U.S. Congress: The Copyright Act of 1976

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Who Owns a Dance? The Complexities of Copyrighting Choreography

Noel Diem — Wed, 13 May 2015 16:57:58 +0000

Image courtesy of [Paul Stein via Flickr]

From a walk through a subway station to prime time television, dance is all around us. However, with so many people throwing their feet into the game, choreography copyrighting has become a bit of a confusing mess. There is a basic part of choreography that many people do not understand: the creator of the dance does not always own the copyright to the moves. In many cases, especially with tour productions and Broadway musicals, the copyright actually belongs to the producers of the show.

It gets complicated when there are more than one or two people who have created the work, as is the case with many dance teams. There have been cases where a choreographer has simply listed other dancers in order to credit them for an idea or two (which can be as simple as a turn or a hand movement), without realizing that listing them actually gives that person the right to reproduce that work elsewhere.

So, how exactly can you copyright choreography? First, one has to define choreography. It is not as simple as a few dance moves strung together. Instead, Martha Traylor, a legal commentator, has suggested that we define dance as the “planned movement, set into a time frame, for the benefit and enjoyment of the passive observer.” She also notes that this broad definition of dance would provide statutory copyright protection for “everything from circus productions and stage movements of actors to figure skating.”

It can get confusing, but there are a few ways to analyze the complicated world of choreography copyrighting.

The Copyright Act of 1976

When we talk about copyright, the first thing we must turn to is the Copyright Act of 1976, which lays out the ground rules for the many different things that we can copyright. The choreography rules fall under different sections, including those for dramas and pantomime.

The act gives exclusive rights to copyright owners, which include:

The right to make copies, either digitally or physically, of the work.
The right to sell these copies to the general public.
The right to use the work in a different capacity (derivative works).
The right to perform the work in public and collect money for the performance.

These rights belong exclusively to the copyright holder, but can be sold to others to use the choreography. This often happens in new adaptions of older works, like a modernized musical.

But who owns the work in the first place? That depends on how the choreographer was hired.

The “Owner” of the Choreography

Most choreographers start out in a “work for hire” or freelance situation: they are brought in to choreograph something small for a theme park, a small-time music video, or a commercial. In this case, the employer owns the work that the choreographer creates. As the person hired is technically an employee of the entity, that piece of work now belongs to the company that did the hiring.

Some choreographers, especially those who are more well-known, will try to negotiate the rights to a particular piece of dance with varying levels of success.

One of the most beloved routines from the last hundred years has been the choreography in West Side Story. The moves are iconic to those in the know. However, it is also a work that many try to steal or emulate–and the copyright owners are watching. In a recent season of Dancing with the Stars, one of the pros tried to recreate the choreography. However, they couldn’t use any of the iconic moves. If they did so, it could have caused ABC some major problems. What resulted was a dance that reflected the style of the musical, but didn’t use the same routine.

One of the most well known court cases in choreography was the Martha Graham case, where a copyright controversy came up upon the death of beloved artist Martha Graham. She had established a dance school where she helped create over 50 pieces of work that were shown on the stage. However, she never established a copyright to the works between her and the school that she founded.

The case went to trial in 2002. The court used the work for hire law and established that “that 45 pieces were owned by the center and school, five belonged to those who had commissioned them, one belonged to the heir, 10 were in the public domain, and no one could prove ownership of nine works.” Her family lost out on potential profit because they couldn’t prove they were her design.

While this was a mistake made by a bigger artist, many small time choreographers have had similar problems.

More Than One Owner

Today, many shows, tours, or dance troupes will have more than one choreographer that helps to prepare the dances. Often, this includes a main choreographer and someone that assists them. In this case, there can be two or more owners of the copyright. However, it can only be considered a “joint work” if their work is combined and it is inseparable or interdependent on the other contributor’s work.

The U.S. Copyright Office considers joint copyright owners as equals–meaning that one person does not have more rights to the piece than the other person. In fact, unless the joint owners make a written agreement, each copyright owner has the right to commercially exploit the copyright. However, that does not mean that one person can just up and run with the piece–the other person needs to get an equal share of the profits, or the other half can buy them out if they think that will be more profitable.

Musical Copyright and Dance

While music is its own beast when it comes to copyright, there are also considerations you need to take with music and choreography. Think of the dances that we know best: the Macarena, the Single Ladies routine, the “Chorus Line” moves, and even the dancing from “Pitch Perfect”–they all are dependent on the music they accompany. All copyrighted popular music resides in the catalog of “performing rights organizations,” like the American Society of Composers, Authors and Publishers (ASCAP). Getting the rights to those songs often takes a long time and costs a lot of money.

Getting the music for a number is explained by Dance USA:

If a work was published in 1923 or later (that is, you are looking at a printed score and the copyright notice is dated 1923), it is protected by U.S. copyright law in this country. In addition, a large group of works, largely of Russian but also other origin, was restored to copyright in 1996 for the U.S. under GATT. The 20 year extension put into law in 1998 also has an impact on the works covered by this treaty.

If a work is a 20th or 21st century arrangement of an existing work, whether the underlying work is still protected by copyright or already in the public domain, you will need to clear performance rights.

Getting those rights will require a lot of knowledge from the choreographer: like what they are using it for, the size of the performance, and the cost of tickets.

Conclusion

Overall, getting the rights to a piece of work or even copyrighting your own work can be confusing. Choreography, like any other form of art, is protected and heavily regulated. The confusing web of laws surrounding the industry have led to problems for some, but at the end of the day, protects those who invest their time into creating the dances and musical numbers we all are able to enjoy on screen or on stage.

Resources

Primary

U.S. Congress: Copyright Law Revision

Additional

Dance USA: Guide to Music Rights for Perplexed Choreographers

Digital Commons at LMU and LLS: Duet of Discord: Martha Graham and Her NonProfit Battle Over Work for Hire

AVOO: The Business of Choreography: The Relationship between Copyright and Dance

Campbell Law Review: Dance and the Choreographer’s Dilemma: A Legal and Cultural Perspective on Copyright Protection for Choreographic Works

Dance USA: Music Licensing 101: The Pretty to the Nitty-gritty

Fordham Intellectual Property, Media and Entertainment Law Journal: Authorship, Ownership , and Control: Balancing the Economic and Artistic Issues Raised by the Martha Graham Copyright Case

Gallagher, Callahan, & Gartrell: Copyright Basics for Musicians

Kent Law: Copyright and Choreography: What Constitutes Fixation?

New England Law Review: Choreography, Pantomime and the Copyright Revision Act of 1976

New Leaf Legal: DWTS and “West Side Story” Copyright Issues: Explanation and Speculation

Copyright Crash Course: Who Owns That?

Quinnipiac: Dancing Around the Issues of Choreography and Copyright: Protecting Choreographers After Martha Graham School and Dance Foundation, INC. V. Martha Graham Center of Contemporary Dance, INC.

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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Forget Harry Potter. THIS is the Fanfiction You Should Be Writing

Jennifer Polish — Tue, 05 May 2015 15:31:24 +0000

Image courtesy of [Kristy Venosdale via Flickr]

Legal fanfiction, huh?

Now, by that, I don’t mean fanfiction that stringently follows all copyright rules. If you’re looking for pieces on that copyright jazz, tune into this. Or this. (And I know you’re interested. Because all of us fan fic writers are suitably convinced that actual show writers will find our fics and sue us personally, because, well, we write their characters better than they do. And… we do.)

But this is not the kind of legal fanfiction I’m thinking of at the moment.

Right now, I’m thinking of what would happen if we all tried to rewrite the criminal justice system in the ways that we rewrite our favorite shows, books, and comics.

What would fanfiction of the criminal justice system be like? (Or, rather, non-fanfiction, perhaps, because even a cursory understanding of this country leaves me to ask: how could anyone possibly be a fan of the criminal justice system?)

What if we rewrote the legal system, and made it operate however we, as imaginative writers, wish it to be? How would we re-write our legal system if we were writing fiction if we didn’t feel the need to justify ourselves about how “realistic” an idea is at every turn? If we just… imagined?

How would we re-craft the Constitution; would there be a Constitution? Probably not. So the fundamental basis of the document (and this country) was not the “right” to own property (aka, you know, enslaved peoples, on land that we committed genocide to gain access to)?

AU (for those of us who don’t speak fanfiction, that means “Alternate Universe”) — in which anti-racist universal design rather than racist profit-seeking is the main ethos of urban planning: would Baltimore have to be rising right now?

The more creative ways in which we allow ourselves to imagine the legal system, the more fuel with which we can head off to community organizing and protests.

We can write legal fanfiction–and so many of us do, every day–as real-life alternatives to criminal justice: not fan fictions per se, but real political brainstormings about the (un)limits of what we can accomplish. How can we accomplish prison abolition now? What immediate alternatives would need to be arranged? How could that happen?

What alternatives have we to the white supremacist world order now? Some legal (non)fanfiction–like those liberatory pieces linked to above, a form of activism all its own–might help us out.

Fanfiction. Fanfiction. Fanfiction that, like other forms of fiction, can help craft a better world.

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

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Pharrell Williams Fears For the Future of Creativity

Corinne Fitamant — Fri, 03 Apr 2015 14:25:13 +0000

Image courtesy of [NRK P3/Tom Overlie via Flickr]

Pharrell isn’t happy. Last month the hit song “Blurred Lines,” created by Pharrell Williams and singer Robin Thicke, was officially found to be in violation of copyright law. A California judge ruled that the track was too similar to Marvin Gaye’s well-known song, “Got to Give It Up.” Williams and Thicke were ordered to pay $7.4 million to Gaye’s family. Was the judge’s ruling too harsh? Not harsh enough? Have a listen for yourself.

Marvin Gaye’s sister, Zeola Gaye, was also featured on the song “Got to Give It Up.” Amid controversy surrounding the lawsuit, Zeola Gaye clarified that she did not receive any of the $7.4 million reward. In fact, she never desired or requested any of the money from the case; compensation was always meant to go solely to Marvin Gaye’s heirs.

You may have heard “Blurred Lines” played ad nauseum on radio stations during the summer of 2013. You’ve probably also heard about (or seen) the song’s controversial music video featuring a few scantily clad ladies. I’d wager you probably haven’t heard the opening arguments of the lawyer who defended Williams and Thicke in court. Howard King began his case by telling the jury that creativity could not be owned:

We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.

Although the judge’s final ruling ultimately disregarded King’s premise, Williams has echoed King’s sentiments regarding the ownership of ideas. The Grammy winner claims that the outcome of his case has implications for the music industry and creativity at large:

The verdict handicaps any creator out there who is making something that might be inspired by something else.

Harsh judicial penalties may cause confusion as to what materials artists can and can not use, leaving them in creative limbo.

Courtesy of Giphy.com.

Artists who have creative discrepancies do not always head straight to the courtroom—soulful crooner Sam Smith recently settled a lawsuit with Tom Petty out of court. Musicians and artists who side with Williams fear that the litigation blitz surrounding “Blurred Lines” will start a wave of similar cases wherein artists are unduly penalized for emulating their idols.

Corinne Fitamant

Corinne Fitamant is a graduate of Fordham College at Lincoln Center where she received a Bachelors degree in Communications and a minor in Theatre Arts. When she isn’t pondering issues of social justice and/or celebrity culture, she can be found playing the guitar and eating chocolate. Contact Corinne at staff@LawStreetMedia.com.

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Re-Writing the Classics: What Are Your Fanfiction Rights?

Noel Diem — Thu, 26 Mar 2015 17:53:53 +0000

Image courtesy of [Dennis Skley via Flickr]

We live in a world where fan communities–fandoms–are becoming increasingly popular. Fandoms fixate on a particular television show, band, movie, musical, anime, or other pop culture subject. Creation of content based on these fandoms has also become ubiquitous. People of all ages gather together on any number of fanfiction websites, ranging from social media sites that post stories and art, like Tumblr and Live Journal, to websites designed for fanfiction, like Fanfiction.net and Archive of Our Own. Some fandoms have even developed websites devoted entirely to fanfiction for a particular couple or desired couple, known to many as a “ship.”

When using characters and worlds created by other people, however, there are quite a few potential copyright issues. Fan creations have become so popular that some fandoms are even branching out and making money from their fanfiction and fan art roots. Yet getting the “rights” to your own work is a nightmare when you’ve used a couple from your favorite television show. Though some fandoms have successfully made the switch from unoriginal characters to new creations, many struggle with it.

Fanfiction and fan art are always going to be a part of fandom communities because they bring people together in a way so few things really can. These fandoms have created large communities all over the internet. “Harry Potter,” for instance, is still hugely popular in the fanfiction world, even though J. K. Rowling and Warner Brothers have successfully fought against fan creations.

What exactly are your rights when you take to your computer and write or draw that missing scene from “Once Upon a Time?”

The Official Word

According to a University of San Francisco law blog, fanfiction “can be considered a copyright violation under the Copyright Act of 1976, ” because the holder of the copyright has the right to distribute any derivative works based on an original creation. This often includes sequels, prequels, and art work.

One of the most famous cases of a fan-fiction author is that of J. D. California who penned a sequel to J. D. Salinger’s “Catcher in the Rye” and called it “60 Years Later: Coming through the Rye.” During this case, it was found that characters were granted copyright protection–in this case, Holden Caulfield, an iconic character in Salinger’s novel.

Many would argue that fair use may actually protect fan creations like artwork and stories from being copyright infringement, but many authors have still successfully fought that claim. Legal challenges tend to come more from book authors than movie or television show creators for pretty pragmatic reasons–fandoms often boost the number of viewers for television shows.

So why are so many publishers now actively looking for fan-fiction authors? In part because these stories are sometimes better or more successful than the canonical source material. One cannot ignore the success of recent fanfiction-based novels like “50 Shades of Grey.” Rebecca E. Hoffman for Bloomberg describes how “50 Shades” got around the fan-fiction ties:

But before they became ‘real’ books, they were a Twilight fan fiction series called ‘Master of the Universe.’ ‘MotU’ appeared on fanfiction.net and–with Twilight references removed and character names changed–was later published as three e-books by an Australian company that specializes in fan fiction publishing. Vintage Books, a subdivision of Random House, which ultimately published the Fifty Shades trilogy, maintains that the material is original and no longer based on ‘Twilight.’

According to a Washington Post interview with Jennifer Bersgtrom, Vice President and Publisher of Gallery Books, fanfiction is simply becoming a way to recruit talented authors. She stated, “fanfiction has absolutely become part of the fiber of what we publish. This is changing at a time when traditional publishing needs it most.”

Most fanfiction is safe if it doesn’t criticize or parody the works in question. Even so, the Internet and Intellectual Policy Clinic at the University of San Francisco points out that the only way a person would get in trouble is if the person who holds the copyright ever sees the work:

It is clear though that the law surrounding fanfiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.

Law Street Media | Fan Fiction by the Numbers

The Legal Dos and Don’ts of Fanfiction

The Don’ts

The biggest rule you need to know to avoid getting into copyright hot water is to determine who exactly owns what you are writing about. Some authors simply do not like fanfiction and are very open about that fact. Vulture says that “some authors–George R.R. Martin, Anne Rice, and Diana Gabaldon, author of the Outlander series, among them–protest [fanfiction’s] appropriation of their creations and ask fans to refrain from writing it.” They mostly target websites based on the stories, but have targeted large forums as well.

Some fanfiction creators also have some problems in that they don’t know where to draw the line. Typically there are concerns about RPF or Real Person Fanfiction. Celebrities like Chris Colfer of “Glee” and Taylor Swift have said that they find fanfiction and fan art uncomfortable, especially when it is explicit in nature. Swift has even gone so far as to get fan creations taken off of Etsy, though that may be more of a business decision.

Conclusion

In the end, the best thing to remember about fanfiction, fan art, and anything derived in any other universe is this: it is typically an infringement of the copyright holder. With that said, it is usually done with the best of intentions by fans and it often continues and strengthens the importance of the story being told.

When creating within a fandom, use your head to make decisions about what is appropriate and what isn’t appropriate and you likely won’t find yourself in trouble. It’s also important to note that if you are creative enough to take pre-existing characters and create new stories, you are probably creative enough to make your own original characters.

Resources

Primary

U.S. Copyright Office: Duration of Copyright

Additional

Bloomberg BNA: It’s Never Black or White: Is Fanfiction Fair Use?

Desert News National: With Fanfiction, is Publishing Following in Hollywood’s Unoriginal Footsteps?

Teaching Copyright: Public Domain Frequently Asked Questions

Washington Post: From ‘Fifty Shades’ to ‘After’: Why publishers Want Fanfiction to Go Mainstrea m

University of San Francisco Law Blog: Fanfiction and Copyright Law

Vulture: Fanfiction Guide

CNN: Lawsuit Targets ‘Rip-Off’ of ‘Catcher in the Rye’

Daily Beast: Why Fanfiction is the Future of Publishing

Geeky News: Unauthorized Starkid Production Brings Wrath

The New York Times: Rowling Wins Lawsuit Against Potter Lexicon

Fox News: How Harry Potter Superfans Won a Battle for Fair-trade Chocolate

People: Fifty Shades of Grey and Nine More Examples of When Fanfiction Became Blockbusters

USA Today: Must-Read Fanfiction From ‘Doctor Who,’ ‘Star Trek,’ ‘Farscape’

Noel Diem

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Jersey Boys Stuck in Copyright Suit

Joseph Perry — Mon, 16 Feb 2015 17:04:11 +0000

Image courtesy of [Andy Roberts via Flickr]

Thomas DeVito, an original member of the Four Season, contracted with a book publisher to write his autobiography three decades ago. They decided that Rex Woodward would help DeVito with the ghostwriting and the pair would split the proceeds from the book. Though they completed it, the book was never published it. In 1991, unbeknownst to Woodward, DeVito registered the book with the United States Copyright Office just four months before Woodward died. DeVito and fellow Four Seasons member Nicholas Macioci executed an agreement nearly ten years later with two other Four Seasons members, Frankie Valli and Bob Gaudio, that granted Valli and Gaudio the exclusive rights to “use and incorporate the Materials [from the unpublished book] in one or more theatrical productions, and any and all ancillary and subsidiary exploitations thereof,” which later became the smash Broadway hit, Jersey Boys.

Shortly before Jersey Boys debuted, Woodward’s widow, Donna Corbello, found out about DeVito’s contractual arrangement with Valli and Gaudio when she tried to publish her late husband’s autobiography to no avail. Corbello then added Woodward’s name on an amended certificate with the Copyright Office as a co-author of the unpublished book. As a widow, she received her husband’s copyright interest in the unpublished book and then sued the producers of Jersey Boys, claiming that the show was a derivative work of the unpublished book, and that Corbello, as heir to her husband’s copyright interest, was entitled to its profits.

The dispute was litigated and appealed in federal court. On Tuesday, the Ninth Circuit issued its opinion: the play was a derivative work, and by entering into the exclusive agreement with Valli and Gaudio, DeVito had effectively transferred his and Woodward’s copyright interests in derivative works. Moreover, since DeVito and Woodward are co-owners to the copyright of the unpublished autobiography, DeVito had to account for any profits made because of the agreement he entered into with Valli and Gaudio. Thus, Corbello would be entitled to profits from Jersey Boys.

Nevertheless, there is still an issue that caused the Ninth Circuit to remand its decision back to the district court. There is a question of whether the reversionary clause in the agreement with Valli and Gaudio would terminate Valli and Gaudio’s exclusive rights to the play, which may render the producers of Jersey Boys copyright infringers of Corbello.

The Ninth Circuit points to the grant of rights clause in the 1999 agreement, which stated that the rights granted would continue if production for Jersey Boys could start in a timely fashion, according to the Hollywood Reporter. If production was not timely, then the rights to the play would revert to Woodward, and the producers of Jersey Boys could potentially be infringers of Woodward copyright.

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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Katy Perry Claims Left Shark is Her Intellectual Property and Files Suit

Anneliese Mahoney — Sat, 07 Feb 2015 14:30:44 +0000

Image courtesy of [Samantha Sekula via Flickr]

Katy Perry’s halftime performance at last week’s Super Bowl was really great, but it wasn’t without its moments of humor. Unfortunately, one of those moments of humor has now sparked the pop star’s legal team to file a lawsuit.

One of those great moments that came out of the performance was during Perry’s rendition of her hit song “Teenage Dream.” She did it as a beach-themed segment of the show, and no beach-themed dance would be complete without giant humanoid sharks doing complicated choreography. Unfortunately, one of Perry’s two sharks, now dubbed “Left Shark,” didn’t really do so well. Instead of following the sharp choreography, “Left Shark” kind of just flopped around. See for yourself:

Oh Left Shark. We’ve all known the struggle.

Left Shark has sparked a bunch of spin offs though:

This meme is soooooo much fun…. Valentine’s Day anyone? #sharks #leftshark pic.twitter.com/StDC2xEDc1

— John (@Hayler97) February 4, 2015

Everyone really does love Left Shark. So much so that people have started producing Left Shark items. One company that tried to monetize Left Shark was called Shapeways; it’s a 3D printing company that sells 3D-printed figurines of famous people, such as politicians or celebrities. It started selling a Left Shark figurine; however, it just received a cease and desist letter from Perry’s lawyer.

Fernando Sosa who runs Shapeways, posted a picture of the cease and desist letter on Instragram. It claimed that Left Shark was Perry’s “intellectual property.” Part of the letter read:

As you are undoubtedly aware, our client never consented to your use of its copyrighted work and [intellectual property], nor did our client consent to the sale of the infringed product. Your infringing conduct entitles our client to significant legal relief against you, which may include actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.

What exactly does Katy Perry claim is her intellectual property though? The shark costume itself? It looks like a pretty basic shark costume if you ask me, and courts have often ruled that you can’t trademark costumes. Because they’re clothing, and viewed as an “essential article,” they’re often considered beyond what copyright protection can protect.

So, is she trademarking the concept of “Left Shark” then? That also seems like a stretch. The whole Left Shark debacle occurred because the dancer screwed up and/or forgot the choreography. It wasn’t planned, it was a happy, hilarious accident. Can she really claim that something is her intellectual property if it wasn’t something she came up with?

The cease and desist letter seems more like it was an attempt to scare Sosa and Shapeways, rather than a legitimate threat of legal recourse. Sosa has stopped selling the figurines, but it still seems like a petty move on Perry’s part. After all, all the buzz about Left Shark means people are talking about her halftime show. There’s also been plenty of other Left Shark merchandise produced:

Just bought my very own #LeftShark tshirt!! pic.twitter.com/3qD54F2Syb

— Methibosheth Ichabod (@methibosheth) February 5, 2015

Will Katy Perry send letters to everyone who creates something that’s Left Shark-themed? With the proliferation of pictures on the internet, that may be difficult. It will be a shame if Left Shark disappears just because Katy Perry is grumpy.

Spotify: Spotify for Artists

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Streaming Music: Good Business or an Attack on Artists?

Noel Diem — Fri, 23 Jan 2015 20:00:46 +0000

Image courtesy of [Sascha Kohlmann via Flickr]

Today music streaming sites like Spotify seem ubiquitous, but the truth is that they’re fairly recent innovations. As much as consumers appreciate streaming sites, they’re not always as beloved by artists and their collaborators. Read on to learn about music streaming sites, their history, and the legal foundation behind the popular products.

Where did streaming sites come from?

Since the mid-1990s and the era of Napster, the relationship between music and the internet has been rocky. Before most homes in America had a Wi-Fi connection, the only way to get a copy of a song or album was to go to a store and purchase a CD or cassette tape, or go through the painstaking process of recording the song off of the radio. As soon as more and more homes started getting access to the internet fans realized that sharing music with others could be an easy and cheap way to listen. File sharing networks were a dime a dozen, and anytime you wanted a song or an album, you could download the songs and burn them onto a recordable CD.

This obviously meant that many musicians, songwriters, and rightsholders lost money at an alarming rate, and record companies saw a decline in sales, profits, and even advertising. The response was abrupt: lawsuits against file sharers, program developers, and those who downloaded the songs. Lawsuits ranged anywhere from a few dollars and cents to millions of dollars. Of course, that led to bad PR from the general public and made people share music even more while being even sneakier about it. Eventually, the Recording Industry Association of America (RIAA) stopped filing lawsuits and instead turned to internet service providers to monitor illegal usage.

All seemed to be going better, for at least a short time; however, streaming music came to the forefront of the industry and everyone started to get their music for free from websites like Pandora, then Gooveshark, Rdio, YouTube, and Spotify.

Streaming music sites are paid services–or sometimes free, as long as you’re okay with waiting through ads–that enable you to stream music. With Spotify, for example, you start the program, suggest your favorite artist or song, and then you listen to artists and songs that are similar. On some services, you can mix genres, so you can listen to the Broadcast Cast, Nicki Minaj, and Mozart combination radio station, if you really want. Every time someone listens to a song or an album, the artist gets paid by Spotify.

Musicians used to make money in a fairly simple model based off of album sales through record stores and online. It was convoluted at times, due to percentages and contracts, but at its core it was like any other retail endeavor–producers were paid for their product. Today, however, artists make money on everything from iTunes downloads to on-demand streaming to YouTube videos. Unfortunately, many of these methods generate little-to-no money for the actual artists.

Now these services have a responsibility to the artists and those working on the songs. The American Society of Composers, Authors and Publishers (ASCAP) has just granted Spotify a license to stream more than 8.5 million musical works. Cloud-based music services, which Amazon, Google, and Apple have recently introduced, allow users to store music online and play back the music on any device.

In addition, there are fights among the bigger names in music. Entertainment giants like Disney have fought to extend copyright protection on some of their most popular and lucrative pieces of intellectual property, and musicians and songwriters would certainly love to have a longer period to milk royalties out of their creations before the tunes hit the public domain. With Disney leading the way, we might just see some big reforms on the horizon.

So, how do artists make money off streaming?

There are a few different ways musicians make money. If listeners don’t pay for their subscriptions, they get money from the ads that play every few songs. That revenue goes to the streaming site, which then pays the artists their share. Some users get annoyed with the ads, so then they purchase a premium subscription. According to Spotify, this means that the average user now spends $9.99 a month instead of the $5 a month they would spend without it. This chart from Spotify shows the relationship between money earned and music sales in the digital and physical formats. Spotify says that it “pay(s) out nearly 70 percent of (its) total revenue to rights holders.“

Artists no longer make money from the sale of albums or singles, but rather the play of songs. Many people think that this is making artists “up their game” and make albums with better songs, while many artists view it as not being paid for their art. Here is the official description of how they figure out what “per stream” means, right from Spotify’s website:

An artist’s royalty payments depend on the following variables, among others:

In which country people are streaming an artist’s music

Spotify’s # of paid users as a % of total users; higher % paid, higher “per stream” rate

Relative premium pricing and currency value in different countries

An artist’s royalty rate

Recently, these variables have led to an average “per stream” payout to rights holders of between $0.006 and $0.0084. This combines activity across our tiers of service. The effective average “per stream” payout generated by our Premium subscribers is considerably higher.

So while artists do get compensated when a streaming site uses their work, it’s not as dependable or as lucrative as brick-and-mortar album sales used to be.

Current Debates

When Spotify streams music, it of course takes a cut so that it can stay in business and pay employees. Everyone is happy, right?

Not so fast. It still doesn’t stop illegal download of music, nor does it stop people from piling on the same account, much like people do with Netflix. There has also been some backlash from the musicians themselves. The most notable is Taylor Swift, who refuses to let her album 1989 be played on the service, but also includes Garth Brooks, The Black Keys, AC/DC, The Beatles, and Led Zeppelin. Bette Midler, in particular, is against the services, with Billboard claiming she gets “microscopic micropayment of .00002733076 cents per track.”

Courtesy of Bette Midler/Twitter.

Pandora responded to the Billboard story, saying:

We love Bette’s music and certainly respect her advocacy for fair compensation for artists. But we must clarify an important fact: Pandora paid more than $6,400 for those 4+ million plays, based on our 2014 rates which are published publicly. In terms of compensation to the creative community Pandora remains by far the highest paying form of radio. Pandora pays songwriters a greater percentage of revenue than terrestrial radio. And Pandora paid 48% of our revenue in performance royalties to rights-holders in 2013 – more than $300 million – while terrestrial radio was required to pay nothing.

Of course, Bette Midler probably has enough money to last her, as do many of the other artists mentioned above, but what about artists who do not have as much commercial success? They may not be able to get by on such low payments.

Taylor Swift wrote an Op-Ed on the matter and defended her opinion to Time, saying to those who criticized her choice:

Well, they can still listen to my music if they get it on iTunes. I’m always up for trying something. And I tried it and I didn’t like the way it felt. I think there should be an inherent value placed on art. I didn’t see that happening, perception-wise, when I put my music on Spotify. Everybody’s complaining about how music sales are shrinking, but nobody’s changing the way they’re doing things. They keep running towards streaming, which is, for the most part, what has been shrinking the numbers of paid album sales.

Some musicians are defending the services, however. Bono recently said:

I see streaming services as quite exciting ways to get to people. In the end, that’s what we want for U2 songs. The real enemy is not between digital downloads or streaming. The real enemy, the real fight is between opacity and transparency. The music business has historically involved itself in quite considerable deceit.

Essentially, artists want a fair price for their music. But in a world where almost no one pays full “iTunes” prices for their music, is it worth it for those celebrities to take a stand? As long as there are only a few artists standing against streaming services, it will probably be a losing battle.

Trickle Down Effect?

Swift also defends her choice because she sees her music as an “art.” This begs the question, if the stars are complaining about what they get, what does that mean for everyone else? Alex Anders, a music producer and engineer who has worked with many artists, including the cast of Glee (which charts multiple songs on iTunes and Spotify when the show is in season), had this to say:

@NoelDiem It is the songwriters, engineers, producers, and studios, etc that are paying the price with their livelihood. They can’t tour!

— Alex Anders (@alxanders) January 14, 2015

So who is missing out on money when it comes to streaming? Those who fall into the “other” category, and they have to share a small piece of the puzzle. The Songwriter writes the actual melody and lyrics of the song; the Publisher pays for the music to be recorded; and the Engineer sets up and mixes the music.

The move away from a traditional model of selling music means that these people are sometimes cut out of the equation, or don’t receive as much money as they used to. Can this problem be solved with a restructuring of the music business? Maybe. But it will take artists working together with record labels, streaming services, and internet providers to make a real change.

Conclusion

Streaming music is still in its relative infancy, so it has the potential to improve for everyone in the equation. There have already been many changes in just the last few years. Apple is still in its first year of streaming, and more and more artists are paying attention to cash flow. Is it perfect yet? Hardly. Not by a long shot. But it is a much better alternative than the era of pirated music and zero artist compensation.

Sources

Primary

Pandora: Artist Support

Additional

Billboard: Bette Midler Disparages Pandora, Spotify Over Artist Compensation

Independent: Music Streaming: The End for iPods?

Time: Taylor Swift on 1989, Spotify, Her Next Tour and Female Role Models

Reuters: U2’s Bono Defends Under-Fire Music Streaming Services

Independent: Why Musicians Hate Spotify

Wall Street Journal: For Taylor Swift, the Future of Music is a Love Story

Noel Diem

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2015 Is Off To A Fast Start for the Legal Side of Publishing

Joseph Perry — Mon, 12 Jan 2015 17:41:01 +0000

Image courtesy of [NYRB Classics via Flickr]

The legal side of book and magazine publishing has been off to a fast start in 2015. Check out updates below on three of the most recent cases.

Cosmopolitan Magazine

Andrew Cerett, a former Temple University football player, filed a lawsuit against his ex-girlfriend, Emily Frazer, and Cosmopolitan magazine for defamation, claiming that the magazine ruined his reputation and his potential NFL career after publishing an article entitled, “My Ex Threatened to Kill Me. Why Wasn’t He Expelled,” which appeared in the October 2014 issue.

Cerett and Frazer met each other at Temple University where Cerett was a punter on the school’s football team and Frazer played on the volleyball team. Cerett’s complaint, however, centers on the end of their relationship. Cerett states that Frazer wrote the article with freelance writer Roxanne Patel Shepleavy, which included a photo of Cerett as well as a fictionalized story of how they ended their relationship “at an alcohol-fueled weekend dorm party on or about January 21, 2011,” according to the complaint.

In his own story, however, Cerett claims that both parties became angry with each other, and although Cerett slammed his fist on a kitchen table, he never harmed Frazer. Campus officials arrested Cerrett, but they did not press charges against him. The campus board found Cerett guilty of intimidation and disorderly conduct but did not charge him with stalking or harassment.

Frazer’s article contends that after the breakup, Cerett had a mission to destroy Frazer, and the complaint states that the article portrayed Cerett as a violent thug. In light of the recent domestic violence cases against several NFL players, most notably Ray Rice and Adrian Peterson, Cerett believes that the Cosmo article may prevent him from pursuing his lifelong dream of becoming an NFL player because NFL teams would not want to draft him or sign him as a free agent.

HathiTrust

Last week, the Authors Guild dropped its lawsuit against HathiTrust. In 2011, the Authors Guild sued HathiTrust because it believe it created a database that included millions of unauthorized scans created by Google. The federal district court, however, sided with HathiTrust, and the United States Second Circuit Court of Appeals soon reaffirmed the district court’s decision. Publishers Weekly noted that HathiTrust would notify the Authors Guild if it decides to change its practices in the next five years.

Georgia State University

In a related case that publishers have been keenly watching in Cambridge University Press et al. v. Patton et al., the Eleventh Circuit Court of Appeals rejected the plaintiff publishers’ request to hear the case en banc by every judge in the Eleventh Circuit. The Eleventh Circuit originally only had a panel of three judges hear the case. The request was unusual because the three-judge panel held in favor of the publishers after reversing the federal district court’s decision. The suit originally commenced when three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, sued Georgia State University for allegedly engaging in authorized copying and distribution of copyrighted works by the publishers through GSU’s e-reserve system.

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ICYMI: Best of the Week

Chelsey D. Goff — Mon, 12 Jan 2015 16:09:47 +0000

Hello, Monday, we meet again. As you trudge into a new work week, we’ve got you covered with stories you might have missed last week. Anneliese Mahoney topped the list with all three of the week’s top stories. Number one implores you to stop posting the useless copyright status to your Facebook account — seriously, it’s a waste of your time. Number two recounts Sarah Palin’s latest controversy, this time with PETA over a picture she sent out to her social media followers; and number three is a look at the bumpy legal road ahead for Uber. ICYMI, check out the best of the week from Law Street.

#1 Please Stop Posting the Facebook Copyright Status

Every now and then Facebook updates its policies. And immediately after that, I notice a series of statuses from my “friends” on Facebook. It’s a sort of notice alerting readers to the fact that the poster believes they have copyright over their own content. There are sometimes slight variations in wording, but that’s pretty much what these statuses look like every time. I’ve seen so many in my news feed over the last week that I thought it was time for an important PSA. This status means nothing. Read full article here.

#2 Sarah Palin vs. PETA: Welcome to the Overreaction Olympics

Sarah Palin has a unique place in my heart–after all, there are very few people who I can count on to continually surprise me with the weird scandals they manage to get themselves involved in. But she may have just outdone herself. The most recent Palin scandal started with a photo she posted to Facebook on New Years Day. Read full article here.

#3 Uber Will Have a Rough Ride in 2015

Uber is a great way to get from point A to point B, but the company may have a rocky road ahead of it in 2015. There are a lot of lawsuits pending against the ridesharing company, and while none of them seem that damaging, it does raise a question: why is Uber so prone to lawsuits? Read full article here.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

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Beyoncé and Jay Z Sued Over Song “Drunk in Love”

Anneliese Mahoney — Wed, 17 Dec 2014 15:48:08 +0000

Image courtesy of [Erin Benson via Flickr]

Beyoncé and Jay Z just received some probably upsetting news–they’re being sued. A Hungarian folk singer, Mitsou, or Mónika Juhász Miczura, is claiming that 29 percent of Drunk in Love uses her music. Artist Timbaland is also being sued, given that he co-produced the power couple’s song. Watch the video below to hear the song in question.

Do you hear that sort of high-pitched singing in the background, particularly for the first 30 seconds or so? Mitsou is claiming that’s her, and was part of a song she recorded with her folk band Ando Drom. She claims that it’s been edited and altered, but it is still her voice. In addition, she claims that overall, her vocals and music feature on roughly one-and-a-half minutes of a five-and-a-half minute song–or just under thirty percent. According to E! here is what Mitsou claims is the actual breakdown:

Mitsou claims ‘Drunk in Love’ begins with her voice singing an a cappella solo for the first 13 seconds of the song. After this introduction, she purports that her ‘voice continues to sing as Beyoncé begins to sing’—up until the 41 second mark. Mitsou states that her vocals join Jay Z when he raps in the song from 3:14 until 4:05, a total of 51 seconds

The song that Beyoncé, Jay Z, and Timbaland supposedly took from is entitled “Bajba, Bajba Pelem.” The song was also released in the United States in 1996, under the English name “Gypsy Life on the Road.” That song doesn’t appear to be available anywhere online, but here is a song by her band with an almost identical title, and definitely sounds very similar to my admittedly very untrained ear.

It’s not just the fact that her voice may have been stolen by Beyoncé and Jay Z that offends Mitsou. It’s also the way in which her music was allegedly used. The original Hungarian song was described by Mitsou as evocative of “hopelessness, when one can no longer trust anyone but her own mother and God.” Beyoncé’s Drunk in Love is certainly about a significantly different topic–sexual relationships between long-term partners. Mitsou also purportedly has issues regarding how her song was used to provide sort of an exotic background noise for Beyoncé’s music.

The suit argues that the use of Mitsou’s music was a copyright infringement, and it was filed last week in a Manhattan Supreme Court. It asks for unspecified damages. It also asks for the song to stop being distributed, but given that the album on which Drunk in Love appeared was the fastest-selling album on iTunes–ever–and sold five million copies worldwide, I doubt it’ll slow down the spread of the song. And that’s not even including all the times (presumably a ton) that the song was illegally downloaded.

Beyoncé, Jay Z, and Timbaland are nowhere close to being the first artists to be accused of infringing copyright; however, we’ll have to wait and see who ends up being right.

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Shutting Down Pirate Bay Won’t Stop Internet Piracy

Zaid Shoorbajee — Thu, 11 Dec 2014 16:23:14 +0000

Image courtesy of [John Trainor via Flickr]

On Tuesday, two important things happened in regards to internet piracy. First, a Swedish police raid on a computer server room in the Stockholm area shut down the Pirate Bay, one of the most popular websites for filesharing.

Second, in the immediate aftermath, millions of people were scratching their heads, probably looking for some other way to watch their favorite TV shows and movies for free.

Prosecutor Frederik Ingbland confirmed to Swedish media that the raid was targeting the Pirate Bay. After its founding in 2003, the site became infamous as a venue for millions of Internet users to download music, movies, TV shows, and other pirated media using torrents, a peer-to-peer exchange system. While it isn’t clear exactly how many people were using it at its height, by 2013, the Pirate Bay had become the most popular filesharing website.

This is far from the first time the site has run into the law. In 2009, four of its founders were convicted in a Swedish court of contributing to copyright infringement. They were sentenced to a year in prison and fined $3.6 million to be paid to an array of entertainment media companies such as Sony BMG, Universal Music, EMI, and Warner Brothers. A year later, following a failed appeal, those sentences were reduced by a few months and the fines increased to about $7 million.

The reduced sentences apparently weren’t good enough for two of the convicted founders because, shortly after, Fredrik Neij and Gottfrid Warg suddenly appeared in Southeast Asia, according to the Washington Post. Warg was arrested in Cambodia in September 2012 and this time was given three and a half years by the Swedish courts. Neij was arrested last month crossing the border from Laos to Thailand.

Back then, despite legal trouble and international hide-and-seek, the website was still up and its users were torrenting away. Now, it seems that the Pirate Bay could be down and out, but the ideas it promoted are not. It might sound weird to say that a media pirating website promoted any sort of meaningful ideas, but the Pirate Bay did change the way media consumers view media–in both a literal and conceptual sense. As the Washington Post’s Caitlin Dewey explains, “See, the Pirate Bay is as much an idea and an orientation to entertainment media as it is/was a torrent-tracking site. … It’s made digital piracy a casual, inarguable part of the mainstream.”

The Pirate Bay may have been the most popular way to illegally enjoy your favorite movies, music, and TV shows, but it wasn’t the first site to do this and it definitely isn’t the only one now. The point is there are a ton of people who regularly download pirated media with no remorse. Data from TorrentFreak, a blog about filesharing-related issues, shows that in 2013 more people illegally downloaded HBO’s Game of Thrones than the number of people who actually watched it on TV.

There isn’t any indication that this sort of thing is going to stop soon. The Pirate Bay’s shutdown doesn’t seem be changing that. Co-founder Peter Sunde, who actually did spend time in prison and was released in November, wrote that he was actually glad the site was taken down, calling it “ugly, full of bugs, old code and old design.”

In retrospect, it seems that the main goal of the Pirate Bay was to popularize torrenting as a way to get media. Since that is already the case, people like Sunde are now indifferent about the shutdown. “From the immense void that will now fill up the fiber cables all over the world, I’m pretty sure the next thing will pan out,” he wrote.

Zaid Shoorbajee

Zaid Shoorbajee is a an undergraduate student at The George Washington University majoring in journalism and economics. He is from the Washington, D.C. area and likes reading and writing about international affairs, politics, business and technology (especially when they intersect). Contact Zaid at staff@LawStreetMedia.com.

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YouTube Simplifies Copyright With New Feature

Wed, 10 Dec 2014 11:30:25 +0000

Image courtesy of [Rego Korosi via Flickr]

For bubbly blonde girls like myself, YouTube is an amazing tool. Within it lie countless videos of wondrous hair curling, and cat eye and contouring tutorial videos. As I watch the Carli Bybels of the world teach me how to enhance my cheekbone structure, there’s always a little music in the background to keep it interesting.

YouTube knows the importance of music inclusion in these online masterpieces. This week the social video platform launched a new feature in the YouTube Audio Library that detects and reacts to the music uploaded in these videos.

Before this feature, when a YouTube guru (or any video uploader, for that matter) created and uploaded content, the Content ID system would attempt to detect whether copyrighted music was being used. If copyrighted music was indeed found, the artists would decide whether the piece should be blocked from sharing, the audio should be muted, or in the cases where there was money to be made, whether advertisements would be attached to the video.

With this new feature, uploaders are given a heads up. They can see what will happen to their video with any given song. Though they still have little control of the outcome, having the information beforehand means quicker uploads and hopefully even more content for the more than 1 billion users who visit YouTube each month.

For anyone wanting to upload some clips without the hassle of any of this, YouTube offers many 320kbps tracks and sound effects, royalty-free.

But what does this move tell us (besides that there may be more makeup how-tos)?

Every day, more and more average users share content. These are children, adults, tech nerds, and technologically challenged people. They go on Facebook, YouTube, Twitter, Instagram, Vine, Tumblr and Flickr. They have intellectual property at the tips of their fingers, probably every hour.

Companies, as we saw last week with Facebook, need to be clearer about the legal aspects of sharing content and provide services that make it easier for everyday users to enjoy, share, and interact with copyrighted material. Instead of merely listing a bunch of rules and instructions in the legal section of its Terms of Policy, YouTube is being proactive and providing an online infrastructure that does the work for us.

More companies should look to YouTube as an example of how to play IP offense instead of defense. The results are inarguably win-win: user experience is enhanced, artists are protected, and the entire process is streamlined. As users, it’s important for us to take note of subtle changes like this one as they not only alter our navigation of these sites, but provide us with a signal in this Information Age: IP knowledge is power, people!

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ICYMI: Best of the Week

Chelsey D. Goff — Mon, 08 Dec 2014 18:08:09 +0000

With the announcement last week that the grand jury decided not to indict NYPD officer Daniel Pantaleo in the choke-hold death of Eric Garner, demands for social justice continue to dominate the media world. At Law Street, Alexandra Badalamenti wrote the number one most read piece about the futility of posting the copyright declaration on Facebook that so many people have done in the last week; Hannah R. Winsten wrote the number two most popular article about the presence of the Oath Keepers in Ferguson; and Noel Diem brought us the third most popular article of the week–an explainer on the effect of social media in the recent protests in Ferguson and beyond. ICYMI, check out Law Street’s Best of the Week.

#1 Facebook Copyright Myth Debunked

In today’s world of multiple social media platforms and just too much to do, you may not remember the June 2012 and November 2012 Facebook copyright panics. In case you missed them, here’s how they went: Status updates surfaced from users who unnecessarily “formally declared” their posted material as off limits to Facebook. The hype threw photographers and artists on the social media platform into a frenzy, and those not employed by their intellectual property still worried about the protections over their personal pictures and videos. Read full article here.

#2 Dear Oath Keepers: GTFO of Ferguson

The Oath Keepers have descended upon Ferguson in response to the riots, taking up armed positions on the rooftops of local businesses to guard against looters. Working as a sort of vigilante militia, these rooftop patrollers are veterans, ex-cops, and paramedics. They work at night and, apparently, they’re prepared to shoot down anyone who crosses their path. Read full article here.

#3 Ferguson and the Effect of Social Media Activism

Social media has been a key part of the nation’s involvement in the Ferguson case since the day it happened. Protest footage was shown online as it developed through YouTube, Twitter, and Facebook posts. If that spark of anger ever dissipated, a well-timed hashtag could bring it back, and when the evidence was released, people joined together to comb through the details for more information. Read full article here.

Chelsey D. Goff

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Please Stop Posting the Facebook Copyright Status

Anneliese Mahoney — Thu, 04 Dec 2014 12:30:04 +0000

Image courtesy of [Sebastien Wiertz via Flickr]

Today, November 30, 2014 in response to the Facebook guidelines and under articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data, drawings, paintings, photos, texts etc… published on my profile. For commercial use of the foregoing my written consent is required at all times. Those reading this text can copy it and paste it on their Facebook wall. This will allow them to place themselves under the protection of copyright.

By this release, I tell Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, or to take any other action against me on the basis of this profile and/or its contents. The actions mentioned above apply equally to employees, students, agents and/or other staff under the direction of Facebook. The contents of my profile includes private information. The violation of my privacy is punished by the law (UCC 1 1-308 – 308 1 – 103 and the Rome Statute). Facebook is now an open capital entity. All members are invited to post a notice of this kind, or if you prefer, you can copy and paste this version. If you have not published this statement at least once, you will tacitly allow the use of elements such as your photos as well as the information contained in your profile.

There are sometimes slight variations in wording, but that’s pretty much what these statuses look like every time. I’ve seen so many in my news feed over the last week that I thought it was time for an important PSA. This status means nothing.

Seriously, it’s the equivalent of typing gibberish into your status. First of all, when you sign up for a website like Facebook, you have to agree to all sorts of terms of use. I know most of us click through those kinds of things without thinking–and understandably so. If we actually read the policies of everything we encountered on the internet in a year, it would take the average American 76 work days. Seventy-six probably very boring work days.

So obviously, most of us don’t read the terms and conditions and privacy policies, and that’s fine. But they do still exist, and they serve to protect both the company–in this case Facebook–as well as the users who implicitly agree to them when they create an account.

Essentially what the BS status says is that even though you post things on Facebook, you still own any intellectual property you post. For example, the copyright to a picture. That’s how the law currently works; however, because you are a member of Facebook.com you agree that Facebook can use your content. As Facebook’s legal terms read:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

Lots of legal mumbo-jumbo, I know–but here’s what that means. All sorts of different licenses exist on the internet with regard to content that you can use. Here at Law Street, for example, we need to make sure that images you see at the top of our posts are able to be used–we don’t go out and take pictures ourselves most of the time, same as other news organizations. So we use photo-sharing sites like Flickr to find a picture with a license that allows us to use it, as long as we credit the creator. Essentially what Facebook is saying is that all of the content you post can be used by them because they now have a license that allows it. In order to sign up for Facebook, you agree to this. That’s a concession you make to use their product.

So, essentially the status means nothing because both laws and the policies created by Facebook already spell out what can and cannot be done with your photos. Let’s move on to address the fact that what the status does is try to retroactively amend a contract without negotiating. Think of it this way: imagine that you move into a new apartment and sign a lease with your landlord. The lease includes a provision that allows your landlord to show your apartment to prospective new tenants. But after signing that contract, you put up a sign on your door saying your landlord can’t do that. Such an action would absolutely not stand up in court–and that’s pretty much what this Facebook status is.

Listen, I get it. We don’t want anyone else to have ownership or the ability to use our pictures. But that’s how Facebook’s policies are written, and we have agreed to them by creating Facebook accounts. So please, stop posting the status. It really doesn’t do anything, I promise.

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Publishers Appeal Win in Georgia State University Copyright Law Case

Joseph Perry — Mon, 24 Nov 2014 11:30:39 +0000

Image courtesy of [Courtney McGough via Flickr]

Earlier this month, book publishers appealed their Eleventh Circuit Court of Appeals win against Georgia State University in a closely watched copyright case. In a surprise to many, the publishers have requested that their case be heard en banc, which means that a case is heard before all the judges of a particular court–in this case the Eleventh Circuit.

The publishers have asked for an en banc hearing based on what they argue was the Eleventh Circuit’s faulty analysis and alleged errors. According to Publishers Weekly, “two of the three judges in the unanimous opinion ‘contradicted Supreme Court and Eleventh Circuit precedent.'” Tom Allen, President and CEO of the Association of American Publishers, added that the request is pivotal because of “the vibrant educational publishing market that develops and provides quality content for students and teachers is at stake.”

The events that facilitated the lawsuit against Georgia State University date back to 2008. Three publishers–Cambridge University Press, SAGE Publications, and Oxford University Press–claimed that Georgia State University made thousands of their works available online through Georgia State University’s e-reserves, where students could print and download the works for free without seeking the copyright holder’s permission. The three publishers then sued four university officials of Georgia State University for direct, vicarious, and indirect copyright infringement.

In 2009, Georgia State University changed its copyright policy, where each professor who wanted to post a copyrighted material or excerpt of copyrighted material on its e-reserves would have to complete a fair use checklist to see if the professor’s proposed use qualified.

In 2010, a federal Georgia court held in favor of Georgia State University because there was not enough evidence to prove that the defendants engaged in copyright infringement. In particular, the four fair use factors–the purpose and character of the work; the nature of the copyrighted work; the amount and substantiality taken of the work; and the effect of the use on the potential market–favored Georgia State University because the purpose of the excerpted works was educational and non-commercial, the nature of the works was scholarly, a small amount of each excerpted work was taken, and there was little effect on the potential market of the excepted works.

Last month, however, the Eleventh Circuit reversed and ruled in favor of the publishers. Although the publishers won, insiders noted that the Eleventh Circuit rejected the publishers’ main arguments and remanded the case to the district court.

You may have wondered in the past how professors and teachers were able to print and distribute excerpts of copyrighted works in their classrooms without a license. The answer is fair use. To claim fair use, a particular use has to pass the aforementioned four-factor test. No factor carries considerably more weight than the other.

However, not every use is a fair use, and thus, not every excerpt that a teacher or professor uses counts as fair use (for instance, it would likely not be fair use if a professor or teacher printed and distributed packets to students that contained 3/4 of “To Kill a Mockingbird” because the amount taken of the work would likely be too much, despite the non-commercial purpose and scholarly nature of the excerpted work).

This case is extremely important because it will immediately impact the classroom and determine what teaching tools and materials can be freely used. Moreover, according to The Chronicle of Higher Education, there is also a similar case pending against the University of California, Los Angeles.

These two cases have the ability to determine the future of higher education.

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Getty Images’ New Approach to Copyright is Bad For Artists

Wed, 19 Nov 2014 11:30:30 +0000

Image courtesy of [Mary Crandall via Flickr]

As a future law student who plans to focus my studies on Intellectual Property, I navigate news aggregation sites thirsty for some juicy copyright and trademark infringement stories. Protecting and recovering property is what I’m about. After all, there’s ingenuity, labor, and profit to protect!

Therefore, when Getty Images turned over a new legal leaf this week, I found myself confused, annoyed, and relying on my inherent sarcasm to get me through this bit of tough IP news.

Getty Images, a large and well-known image licensing company, is seeking to make less aggressive copyright enforcement a priority. Aww, so endearing, isn’t it? *Cue eye roll*

For years, Getty has been equipped with (and fully utilized) software that flags illegal reproductions of its images on the Internet. Once flagged, Getty would send a rather stern note to the party that is allegedly infringing its content. Threats in the letter include costly litigation avoidable by settlement penalty payments and licensing and enforcement fees.

Recently, the leader of Getty Images’ global legal team, John Lapham, explained to GigaOm how Getty’s “enforcement policies are being ramped down…We’ve changed the program quite a bit to remove penalty and fees.”

Retrospectively, there were hints along the way. In March, Getty allowed free embedding of a majority of its images. For Getty, the move allowed access to more user data, advertisement insertions, and metered payments to Getty photographers. For users, the watermark was removed from this group of images, but critics still say “the implementation is hideous.” Ouch.

A Getty spokesperson extended Lapham’s explanation, stating in an email:

Our aim is to approach infringers as customers and to educate them—and anyone else who is new to licensing—about how to license imagery properly. To this end, at the beginning of this year we changed our approach to remove additional fees—“fees” being a percentage of the costs we incur in detecting unauthorized use and recovering the cost of the license. We now endeavor to recover the cost of the license fee only—there is no additional fee or penalty—and we only seek payment from registered businesses that are using an artist’s exclusive content to promote their own business.

So, Getty wants to treat infringement as just a customer mistake. A far cry from the intense lawsuit spree it executed earlier this year.

I appreciate the little licensing lesson that Getty is offering. But I disagree. A photographer worked hard for that photo, positioning the subjects, adjusting the lighting, staging the background. As Getty tries to promote its new tactic as one that helps the creative community, my years of studying communication and media make that hard for me to believe. The credibility associated with Getty is built upon the corporate and legal muscle it provides for artists. By diluting that practice, I worry and feel for the artists who license their work through the company.

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Your Nighttime Eiffel Tower Pictures Are Illegal

Wed, 12 Nov 2014 20:03:58 +0000

Image courtesy of [Flikr via Tommie Hansen]

Previous fun facts about French life have let us in on a little secret: French people are picky. Each French city’s mayor or maire possesses the authority to establish policies that maintain public order. In Paris, rules vary according to arrondissement, or district.

So, the French are detail oriented. They like their rules and that’s okay.

However, their latest regulation—on copyright—is so strict that it’s funny. La Tour Eiffel, the Eiffel Tower’s official website states that although snapping some photos of the famous landmark is alright in the daylight, pictures are off limits when the sun goes down. My deepest condolences to anyone who ever dreamed of having a nighttime Parisian wedding photo shoot. The website explains, “its various illuminations are subject to author’s rights as well as brand rights. Usage of these images is subject to prior request from the “Société d’Exploitation de la Tour Eiffel.”

The structure of the Eiffel Tower itself is in the public domain. What isn’t in the public domain is the show put on at night during which different color lights are projected onto the landmark. That, instead, belongs to an artist who takes liberties and utilizes style to determine which lights, colors, speed the illuminations take place. Therefore, a reproduction of the work would require permission—and perhaps compensation—of said artist.

Essentially, it’s a time issue. The Eiffel Tower was built long before pretty lights were shone on it. This EU Information Society Directive includes a clause asserting that buildings in public spaces are to be in the public domain. However, France is one of the countries that refrained from adopting the directive into its law. Italy and Belgium also refused the directive and retained their stricter policies. Belgium experiences the same issues with its Atomium, delineating on its website that “the image of the Atomium is protected and can only be used under certain conditions…Prices depend on whether it is to be used for a cultural, educational or commercial purpose.”

One must ask: when copyright law restricts something so large, so famous, and so iconic, how can it truly be enforced?

Wikipedia pages are being careful about it. Atomium pages include censored images or photographs of Atomium models. Poor Instagram will probably never see the legal light show. Illegal, however, can be found by a simple search of #eiffeltower. Google Images is chock-full o’ examples.

Ultimately, the regulation probably isn’t causing any tourists severe angst. That doesn’t, however, detract from the fact that it is copyrighted and nighttime Eiffel Tower pictures constitute infringement. We may take for granted our ability to legally Instagram post Lady Liberty at 3:00am with abandon.

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Author Sues Toyota Over B.B. King Commercial

Joseph Perry — Tue, 04 Nov 2014 11:32:17 +0000

Image courtesy of [Paul David via Flickr]

Author Eric Dahl claims that Toyota stole a story from his book and used it in a recent Toyota Camry commercial.

According to Dahl’s complaint, his book, “B.B. King’s Lucille and the Loves Before Her,” contains a story that is similar to the story that occurs in a Toyota Camry Commercial. In particular, Dahl alleges that he visited a pawn shop in Las Vegas and purchased a Gibson Lucille guitar. He researched the guitar’s origin and discovered that the Gibson Lucille—the Prototype 1—was the same guitar that Gibson gave B.B. King on his eightieth birthday that was later stolen from his home. Dahl stated that he agreed to give King the Gibson guitar without compensation, and King arranged a meeting where King autographed another Gibson Lucille and gave it to Dahl in appreciation for his generosity.

If you have watched television in the last few weeks then you may have seen a Toyota Camry commercial where a girl finds a guitar, tracks down the previous owner — who happens to be B.B. King — gives him the guitar, and is given an autographed guitar in return. Take a look at the commercial below.

Dahl claims that Toyota’s commercial is a derivative work and is suing for copyright infringement.

Section 101 of the Copyright Act defines a derivative work as “a work based upon one or more preexisting 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.’”

Under United States Copyright Law, derivative works give authors exclusive rights to license new works based on the author’s work. For example, motion pictures based on novels are considered derivative works because they are works based on the author’s work (i.e., the novel). In this case, the Toyota Camry commercial may be a derivative work because it is based on Dahl’s work, and Dahl never licensed use of his book to Toyota.

In order for Dahl to have a claim for copyright infringement, he must prove two elements: that Dahl has a valid copyright in his work, and that Toyota copied constituent elements of his book. In other words, the second element means that Dahl has to prove that Toyota actually copied Dahl’s work, and Toyota improperly appropriated Dahl’s work.

Proving copying is a factual question, which can be proven by direct evidence like testimony; however, copying is usually proven through circumstantial evidence like proving that Toyota had access to Dahl’s work, and there is a substantial similarity between Dahl’s book and the Toyota Camry commercial.

Dahl claims that Toyota had access to his book. The Entertainment Law Digest states that “members of Gibson Guitar who were aware of his book and the story of the returned Gibson Lucille prototype were consulted by Toyota and the advertising production crew and confirmed the ad is based on the account in Dahl’s book.”

Thus because Dahl owns a valid copyright of his work, and Toyota may have had access to Dahl’s book, there might be circumstantial evidence that Toyota committed copyright infringement. However, we will have to wait and see Toyota’s answer. My guess is that Toyota will claim fair use in defense of its commercial.

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Another Guy Claims Life is “Frozen,” But This One’s Hilarious

Chelsey D. Goff — Sat, 25 Oct 2014 10:30:01 +0000

Last month fellow Law Street writer Joe Perry published a great article about Isabella Tanikumi, a writer who is suing Walt Disney Company for $250 million. For what you ask? Well, Tanikumi claims that Disney’s smash hit “Frozen” — the animated insta-classic that’s spawned a countless musical renditions (I suggest you check out this one and this one if you need a pick me up) — is based on her life as documented in her autobiography, “Living My Truth.”

This month the hilarious duo of YouTube personality Kevin and his grandma got into the Frozen game. Watch the video below to see Kevin convince his grandmother that Frozen is actually his life. Jump to the 0:25 mark to see Kevin’s grandma “recall” seeing Frozen character Ana the “ginger” at the house.

Can we not all relate to this type of conversation without grandparents? Too funny. Happy weekend!

Click here to read Joe Palmisano’s original article, “Author Sues Disney for $250 Million Claiming ‘Frozen’ is Based on Her Life.”

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Chelsey Goff (@cddg) is Chief People Officer at Law Street. She is a Granite State native who holds a Master of Public Policy in Urban Policy from the George Washington University in DC. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at cgoff@LawStreetMedia.com.

Featured image courtesy of [Joe Penniston via Flickr]

Chelsey D. Goff

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Led Zeppelin Fights Claims They Plagiarized “Stairway to Heaven”

Zaid Shoorbajee — Fri, 24 Oct 2014 19:34:34 +0000

A lawsuit filed in Pennsylvania claiming that the popular English rock band Led Zeppelin plagiarized the iconic song “Stairway to Heaven” is moving forward after a federal judge denied the band’s motion to dismiss the case. The case claims that Zeppelin lifted parts of “Stairway” from “Taurus,” a song by the lesser-known American band, Spirit. The suit was filed by the Randy Craig Wolfe Trust, a group that’s made up of family members of Spirit’s founder, better known as Randy California. They stand to gain a chunk of Zeppelin’s earnings from the song, which as of 2008 were valued at about $562 million.

“Stairway” was released in 1971, three years after “Taurus.” It’s possible that Zeppelin was heavily influenced by Spirit, as they played together several times in 1968 and 1969. When listened to, no Zeppelin fan can deny that the two songs are very similar. Namely, the opening to the eight-minute “Stairway” sounds a lot like the entirety of Spirit’s two-and-a-half minute song, which is an instrumental with no vocals.

The plaintiff’s complaint is amended from an original one filed in May. Zeppelin’s lawyers in September filed a motion to dismiss the case, arguing that there was no sense in the suit taking place in Pennsylvania, as they’re all British citizens who have no connection or property in Pennsylvania. Zeppelin’s motion said that they’d be willing to move the case to Los Angeles, but Philadelphia Federal District Court Judge Juan Sánchez denied the motion to dismiss after the plaintiff amended the case to say that Zeppelin has made money off of Stairway in Pennsylvania, and therefore it is an appropriate venue.

The Daily Beast points out that Zeppelin is no stranger to lawsuits about its content. The band has been sued by for its songs, “Bring It on Home,” “Killing Floor,” and “Dazed and Confused” by artists alleging that Zeppelin’s songs are too similar to their own. All those cases, however, were settled outside of the courtroom.

If this case doesn’t end in a settlement, however, a court would have to rule whether Zeppelin infringed Spirit’s copyright by deciding whether “Stairway” sounds like “Taurus.” Even if the judge or jury believes that Zeppelin copied Spirit subconsciously, precedent tells us it’s enough to say they plagiarised. In an infamous 1976 case, former Beatle George Harrison was found liable of copyright infringement for using similar music in his song “My Sweet Lord” as the song “He’s So Fine” by Ronald Mack. The court ruled that Harrison unconsciously plagiarized Mack’s work

Although this may sound like the beginning of the end for “Stairway’s” reign as one of rock and roll’s greatest songs, the details of the case suggest otherwise. Sánchez denied Zeppelin’s motion to dismiss “without prejudice to reassertion as to Plaintiff’s Amended Complaint.” As an article in Bloomberg Businessweek explains, all that complicated legalese means is that Zeppelin can argue another reason to dismiss the case, and they’ll probably succeed.

That being said, it’s noteworthy that Zeppelin picked the Pennsylvania venue as the reason to ask for a dismissal, and that they are willing to take on the case in California, where Spirit is from and where there could be more relevant witnesses. If Zeppelin has a better reason to dismiss the case, they might have used it already. There is no telling at this point, but I have to say, ooh, it makes me wonder.

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Zaid Shoorbajee (@ZBajee)

Featured image courtesy of [Heinrich Klaffs vi Flickr]

Zaid Shoorbajee

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Apple Appeals to Trademark Office on Behalf of Siri

Wed, 22 Oct 2014 15:16:39 +0000

Image courtesy of [Karlis Dambrans via Flikr]

“Siri, I’m upset.”

“All shall be well, and all shall be well, and all manner of thing shall be well.”

Okay — so she’s not the deepest or most prophetic robot that ever tried to cheer me up, but we have all come to simultaneously know, love, and hate Siri. She saves us time by writing out our grocery lists (despite her confusion of homophones), keeps us from getting lost (although she tends to take the long way) and sometimes, on a Monday, simply provides just enough sass to keep us drudging until 5:00p.m. Apple is very proud of its little lady. Referring to the robotic personal assistant, the company advertises, “Your wish is its command.”

So, when the U.S. Trademark Office turned down Apple’s 2012 application for protecting Siri’s trademark as a “social network,” Apple stood up for its loyal virtual assistant. This week, the company filed an appeal with the Trademark Office, claiming that the examiner was not correct in his conclusion and that Siri deserves another chance.

Initially, it was determined by the examiner that Apple is not currently using Siri as part of any social networking business. Therefore, Siri cannot be protected by a social network mark. However, Apple argues that in many ways Siri accompanies social network websites such as Facebook and Twitter. For example, Siri can post and update statuses to both sites via a user’s voice command, allowing Siri to serve as a direct tool for online social interaction.

Some wonder whether this move from Apple’s legal team means that Siri’s social media future is bright, with more innovative, multi-platform media capabilities to come. This is somewhat expected, as our society inches closer and closer to artificial, technological assistance. We already have Siri and the Roomba robot vacuum. It’s only a matter of time before we’re able to fill our cubicles with a bunch of Wall-Es, right?

Others write this legal move off to be merely proactive. After all, Apple’s fierce legal team loves intellectual property and has been accused many times of creating a litigation bubble around its products, making it exponentially more difficult for competitors to enter the market with rival products. Apple is known to get crafty with its legal practices. In the past, the company has cited design patents when questioning the originality of Samsung technology (Apple Inc. v. Samsung Electronics Co. Ltd. et al.), protected its products with utility patents, trade secrets and copyright, and even obtained trade dress to uphold certain shapes, colors, or materials of a product as its own (the sneakiest of all the IP tactics).

The word “Siri” has definitively been Apple’s for two years. Apple holds the trademark for Siri as voice recognition software; however, Siri’s primary function seems to be unclear across the board.

I wondered if Siri was worried, so I asked her if she was upset. It turns out, she’s quite the optimist, answering, “Everything is fine. All of my circuits are operational.”

Only time will tell whether Siri’s purpose can be legally defined. In the meantime, we can still appreciate her as our trendy, ditzy assistant whom we resent but would never dare fire.

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Author Sues Disney for $250 Million Claiming “Frozen” is Based on Her Life

Joseph Perry — Mon, 29 Sep 2014 10:30:41 +0000

If you’ve believed that motion pictures like “Aladdin,” “The Lion King,” and “The Little Mermaid” were fictitious, which seems plausible since they’re, well, animated and also contain imaginary characters, then you may be sadly mistaken. According to a federal court complaint, Isabella Tanikumi, whose pseudonym is L. Amy Gonzales, has sued the Walt Disney Company for a whopping $250 million because Tanikumi believes that Disney plagiarized her life story in order to make its most successful animated film of all time, “Frozen.”

Tanikumi alleges that Disney took her life story from her autobiography, “Living My Truth.” Tanikumi claims that “Frozen” plagiarizes “Living My Truth” in 18 ways, including its plot, characters, and story. According to Fox News, the most interesting claims are that “Frozen” and “Living My Truth” both take place in the snow-covered mountains; the sisters’ Elsa and Anna in the movie have different colored hair, own horses, and love each other just like Isabella, the main character in the autobiography, and her sister; Isabella’s two love interests in the book are Hans and Christof, just like Anna’s romantic interests are Hans and Kristoff in “Frozen;” and Elsa’s sister, Anna, dies in an accident just like Isabella’s sister.

Moreover, Fox News reports that Tanikumi alleges that the movie’s now-famous soundtrack is plagiarized too because songwriters and the movie writers took portions of her life story to develop it.

When I think of Tanikumi’s lawsuit, the case that comes to mind is Nichols v. Universal Pictures. In that case, an author who wrote a play entitled “Abie’s Irish Rose” — which was about a young Jewish man who marries an Irish Catholic girl against the wishes of both of their fathers — alleged that the producers of “The Cohens and Kellys” — which was about a young Catholic man who marries a Jewish girl against their fathers’ wishes — infringed the play’s copyright. The doctrine that came out of Nichols is called “scenes a faire,” which is a French term meaning “a scene that must be made,” and refers to scenes and elements in a book or film that are obligatory for a genre. For example, westerns have protagonists who have guns, holsters, and ride horses, as well as an obligatory scene where the protagonist has a showdown with the antagonist, which are uncopyrightable because authors need those elements and scenes to create other western films and stories. The Nichols court said that as long as “The Cohens and Kellys” took “scenes a faire,” then they didn’t infringe the copyright of “Abie’s Irish Rose.”

In Tanikumi’s case, Disney may point to the “scenes a faire” doctrine of its coming-of-age tale to refute the writer’s claims. However, it is more likely that Disney will argue that Tanikumi has a “failure to state a claim,” which means that Tanikumi has no case because her life story is not “substantially similar” to “Frozen,” which is an element needed to prove copyright infringement.

I will be surprised to see if this case moves very far, but nevertheless, I will be eagerly watching to see the next development.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [Dawn Ashley via Flickr]

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Fox News Suffers Major Fair Use Defeat to TVEyes

Joseph Perry — Mon, 15 Sep 2014 19:05:32 +0000

Image Courtesy of [(vincent desjardins) via Flickr]

On Tuesday, a New York federal district court ruled that TVEyes’ use of Fox News’ video clips is a fair use according to the federal Copyright Act.

Who is TVEyes?

You may not have heard of TVEyes, Inc. before, but you’ve probably heard of some of its subscribers: the White House, 100 members of Congress, the United States Army, MSNBC, ABC, CBS, and the Associated Press.

So your two next questions may logically be: 1) who is TVEyes? and 2) why do portions of the federal government and the country’s major media outlets care about it? The answer is that TVEyes is a for-profit 24/7 media-monitoring service that monitors and records more than 1,400 television and radio broadcasts and transforms the broadcasts into searchable databases. The searchable databases allow TVEyes’ subscribers,like the White House, to see how different television and radio stations from across the country are reporting a particular event.

How Does TVEyes Work?

You may also be wondering how TVEyes is able to record thousands of broadcasts at once, and how subscribers are able to use its database. According to a New York federal court opinion published on Tuesday, September 9, TVEyes uses closed captioning and speech-to-text technology to record television and radio broadcasts, and then the company creates a database of the recorded content. Subscribers log onto a Watch List Page, which monitors keywords, tabulates the total number of times a keyword was mentioned by all 1,400 television and radio broadcasts, and organizes keyword search results by day for a 32-day period. From the Watch List Page, subscribers can click on the Results List Page, which shows the number of times a keyword was used on a particular day. Each result on the Results List Page contains transcripts of the television and radio broadcasts that mention the keyword as well as thumbnail images of that television or radio broadcast that said the keyword. The subscriber can then click the thumbnail image, and a video clip of the broadcast will play alongside a transcript on the Transcript Page, which contains a wealth of information such as the name and location of the broadcast channel, Nielsen Ratings data about the clip, and the publicity value of the clip.

TVEyes also provides the following notable features and pages:

A Media Stats page that graphically illustrates the number of times a keyword has been used over a period of time;
A Marketshare page that contains a “heatmap” indicating the geographical locations that use the keyword the most;
A Broadcast Network page which depicts in a pie chart the breakdown of which broadcast stations use the keyword;
A Date and Time Search that lets subscribers play a video clip that aired on a specific date and time on a specific television station; and,
A Media Snapshot featurethat allows subscribers to watch live streams of everything that TVEyes records.

Moreover, subscribers can save, archive, edit, and download an unlimited number of clips, and email clips to anyone, regardless if he or she is a TVEyes subscriber. Once a recipient clicks on the e-mailed clip, he or she is directed to TVEyes’ website and not the content owner’s website (i.e., Fox News’ website).

Copyright Infringement Lawsuit

Fox News sued TVEyes because it believed that TVEyes would divert its viewers to TVEyes’ website. Fox News claimed that TVEyes committed copyright infringement because TVEyes used Fox’ News copyrighted video clips to create content on TVEyes’ website, which its subscribers can play, save, edit, archive, download, and share. Specifically, Fox News alleged that TVEyes copied and infringed 19 one-hour programs on the Fox News Channel and the Fox Business Network, such as two episodes of On the Record with Greta Van Susteren, three episodes of Special Report with Bret Baier, three episodes of The Five, four episodes of The O’Reilly Factor, two episodes of The Fox Report with Shepard Smith, four episodes of Hannity, and one episode of Special Report Investigates: Death & Deceit in Benghazi.

Fair Use Defense

Whenever a plaintiff sues a defendant for copyright infringement, the defendant has certain defenses in the arsenal. One of those defenses is fair use, which is a doctrine that allows the public to use a copyrighted work without an author’s permission in certain situations. In this case, TVEyes argued that the features on its database constituted fair use.

The fair use statute, which is listed under 17 U.S.C. 107 in the federal Copyright Act, says that if a defendant uses a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research, there is a strong presumption that the defendant’s use of the work is fair use. Nevertheless, a court must consider the four factors listed therein:

The purpose and character of the work.
The nature of the work;.
The amount and substantiality of the copyrighted work that the defendant used.
The effect the defendant’s use has on the potential market or value of the copyrighted work.

Each factor, however, must be viewed in isolation, and the court uses a balancing test. No one factor brings about a resolution. Let’s see how the court analyzed the four factors.

Factor 1: The Purpose and Character of the Work

The court noted that the main reason for looking at the purpose and character of a defendant’s work is to see if it adds something new to the original copyrighted work and is not merely a substitute for the original work. The court’s investigation of whether a work adds something new is referred to as “transformative” use. TVEyes argued that its features providing subscribers with Fox News’ video clips is transformative, but Fox News argued that TVEyes’ copying and disseminating of its copyrighted excerpts, circulations, and summaries is not fair use.

The court held that TVEyes’ features that provide its subscribers with Fox News’ video clips was transformative because the database converted Fox’s copyrighted works into a research tool. Moreover, TVEyes’ subscribers use TVEyes for research, criticism, and comment. Finally, although TVEyes is a for-profit company, and commercialism can sometimes weigh against a finding of fair use, the more transformative a work is, the less significance is placed on commercialism. Since TVEyes’ work was transformative, factor one favored TV Eyes.

Factor 2: The Nature of the Work

This factor considers the nature of the copyrighted work because some types of work are closer to the kinds of works that copyright law intends to protect. For example, the type of work at issue in this case (i.e., the news) is not copyrightable because the news contains facts. Facts are not copyrightable because society wants everyone to be able to freely disseminate facts in order to find the truth; however, the creativity in deciding how to portray, film, direct, sequence, communicate the news is copyrightable

Nevertheless, courts may favor fair use for a work that is factual or informational. Wwhere the work is transformative, however, the second factor has limited value. Thus, the court said that the second factor does not weigh for or against a finding of fair use in this case.

Factor 3: The Amount and Substantiality of the Copyrighted Work the Defendant Used

TVEyes concedes that it copied all of Fox News’ content. This factor, however, does not just employ a quantative comparison between the original copyrighted work and the defendant’s work, it also asks whether the defendant copied no more than was necessary for any valid purpose stated in the first factor (i.e., transformative use). Since TVEyes’ business model depends on copying all of Fox News’ content, the court said that TVEyes did not take more than what was necessary to obtain its transformative use; however, like the second factor, the court held that the third factor weighed neither for or against a finding of fair use.

Factor 4: The Effect of the Defendant’s Use on the Potential Market or Value of the Copyrighted Work

This factor considers the economic injury that the defendant’s work causes and the benefit the public generates from use of the defendant’s work, if any.

Economic Injury: This part of factor four determines whether the defendant’s use would have an adverse impact on the potential market of the original copyrighted work. Fox News argued that TVEyes’ services decreased its ratings of the 19 individual, hour-long programs it aired between October 2012 and July 2013, and thus diminished the amount of per-subscriber carriage fees that advertisers and cable and satellite providers paid Fox News because TVEyes’ subscribers watched TVEyes’ copies rather than the Fox News Channel or the Fox Business Network.

The court stated, however, that the 19 shows were no longer available for TVEyes’ subscribers, and TVEyes erases its content every 32 days. Moreover, during the 32-day period in which these programs were available, only 560 video clips played, and 85 percent of those played were less than a minute long. In addition, between 2003-2014, only 5.6 percent of all TVEyes users saw any Fox News content on TVEyes. In only three instances between March 2003 and December 2014 did TVEyes subscribers access 30 minutes or more of Fox News Channel’s content, and no subscriber accessed any Fox Business Network content. Furthermore, 95 percent of all video clips played on TVEyes are three minutes or shorter. Thus, the court said there was no basis that TVEyes’ subscribers would likely watch ten minute clips sequentially in order to use TVEyes as a substitute for Fox news.

Fox also argued that TVEyes impairs the derivative work market for syndiciation partners like YouTube and Fox News’ exclusive licensing agent, ITN Source and Executive Interviews. However, Fox could not point out the alleged customers that Executive Interviews lost. Moreover, Fox’s revenue from syndication partners and licensing clips is a small fraction of Fox News’ overall revenue (i.e., north of $212,000 and $246,000 respectively) and would likely be outweighed by the public’s benefit of using TVEyes’ services.

Public Benefit: TVEyes argued that it provides a tremendous public benefit because it creates a library of television broadcast content and makes it easy and efficiently text-searchable. It also argued that without TVEyes there would be no way to search 27,000 hours of daily television broadcast programming, most of which isn’t available online or anywhere else.

Moreover, TVEyes argued that subscribers use its service to comment and criticize broadcast news; government bodies use it to assess factually-reported accuracies; political campaigns use it to monitor political advertisement and campaign appearances during elections; financial firms use it to monitor and archive employees’ public statements for regulatory compliance; the White House uses it to evaluate news and to provide the press with feedback; the United States Army uses it to track media coverage about worldwide military operations to ensure national security and troop safety; journalists use it to research, report, compare, and criticize broadcast news coverage; and elected officials use it to conform informational accuracies reported on the news and to correct misinformation.

Thus, after analyzing the economic injury and public benefit factors, the court held that factor four favored a finding of fair use because the public benefit of TVEyes outweighed its minimal possibility of competition to Fox News.

Balance of Four Factors

Since TVEyes captures and indexes broadcasts that would otherwise not be there — and journalists, the White House, the United States Army, financial firms, elected officials, and political campaigns use TVEyes for purposes like criticizing news, correcting misinformation, assessing commercial advertising, evaluating national security risks, and tracking financial regulatory compliance — the court held that copying Fox News’ content for indexing and clipping services for TVEyes’ subscribers was fair use.

Limited Fair Use

The court held that it did not have to decide fair use for the full extent of TVEyes’ services because no sufficient evidence was presented about whether features that allow TVEyes’ users to save, archive, download, email, and share clips of Fox news’ broadcast content were integral to the transformative purpose of indexing and providing Fox News clips or whether they threatened Fox News’ derivative businesses. Moreover, neither party was entitled to summary judgment on whether the date and time search function because the record failed to show whether the date and time search function was integral to the transformative purpose of TV Eyes’ service. The court said the factual record regarding the date and time search function should be developed further.

What’s Next?

The court scheduled the next court date for October 3, 2014, which will determine the remaining issues stated about in the “Limited Fair Use” case. We will have to wait and see how the court handles those issues.

U.S. Congress: 17 USC 501 Infringement of Copyright

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U.S. Copyright Law: Enough Protection for Artists?

John Gomis — Fri, 12 Sep 2014 18:00:52 +0000

Image courtesy of [Horia Varlan via Flickr]

In the age of the internet, phones with cameras, and digital picture-taking, it’s become much easier to “steal” artistic property. Both the United States and the international community try their best to prevent the theft of artistic and intellectual material through copyright laws. In addition to regular copyright laws, there also exists something called “moral copyright.” Moral rights are artists’ rights to protect the integrity and ownership of their copyrighted works. They include the right of attribution, the right to have the work published anonymously or pseudonymously, and the right to the integrity of the work. Preserving the integrity of the work creates limitations upon the rights of others to distort the work, alter it, or do anything that attenuates the artist’s relationship with the work.

Read on to find out how both artists’ copyright and moral copyrights are protected by law, the effectiveness of the laws, and the arguments for and against the different laws in place to protect artists’ rights.

U.S. Copyright Law

The stated purpose of U.S. Copyright law is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law protects many forms of artistic works including literary, musical, dramatic, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audiovisual works, sound recordings, derivative works, compilations and architectural works. Even though the realm of works protected is wide, there are differing levels of protection that apply for some of these works. For example, sound recordings are protected in a different manner than written documents are.

Copyright law protects the author’s manner of expressing the idea but it does not protect the idea itself. This means that copyright-protected works of authorship can still be plagiarized under the law. For example, a paper that describes a scientific theory may be protected from reproduction or distribution, but someone else can restate the theory with a different manner of expression and circumvent the original creator’s copyright protection.

Copyright protection ensures that the protection of the work lasts longer than the person who created it. Current law mandates that an individual person’s copyrighted works are protected for the duration of his or her life, plus 70 years afterward. For works created by multiple authors, the length of the protection is based on the life of the last surviving author. If a work is made for hire, an anonymous and pseudonymous works (where the author’s identity is not in Copyright Office records), the duration of protection will be ninety-five years from publication or one hundred and twenty years from creation, whichever is shorter. This makes it less likely that an author’s work will fade into the public domain before he or she has a chance to reap its full commercial value. This also serves as somewhat of a safeguard to an author’s legacy after he or she has passed on.

Copyright protection does not exist for articles that have a “useful function.” For example, an artist’s drawing of a train would be protected by copyright, also the creation of a 3D model of the train would be actionable. However, creating an actual, working version of the depicted train would not be actionable under copyright law. Some creators’ work have both useful and non-useful, aesthetic attributes. Copyright law protects the aesthetic attributes but not the useful ones. If the aesthetic attributes cannot be separated from the useful ones, then the owner does not receive federal copyright protection. This means that owners can potentially lose copyright protection because their creation has applications that are useful to society.

Why do proponents argue in favor of current American copyright laws?

Proponents of the adequacy of U.S. copyright law argue that the duration of the rights gives authors time to effectively profit from their work without fear of having their labors stolen. The law properly makes exceptions for certain socially valuable non-commercial uses of copyrighted material by providing such users with Fair Use as a defense to an infringement claim. This allows copyrighted works to be used for socially beneficial purposes before the expiration of protection without infringing on the author’s commercial or economic interests. The substantiality requirement prevents frivolous uses of copyright protection e.g. for single words.

Why do opponents argue against current American copyright laws?

Opponents of the adequacy of U.S. Copyright protection argue that the exceptions are too broad and too easy to invoke. In certain situations, alleged infringers can cause significant economic damage to a creator’s interests and still be protected by a defense granted by copyright law. Copyright protection only protects the author’s manner of expression, not his ideas. Ideas can often still be plagiarized without giving rise to a copyright infringement claim. Also, useful articles that don’t qualify for patent protection still don’t get copyright protection. Since patent protection is more difficult to obtain and has a shorter duration than copyright protection, some authors are disadvantaged by the usefulness of their work, which is contrary to the purpose of the Copyright Clause of the Constitution. Finally, if content is too minimal then copyright law does not protect it.

Moral Copyright Laws in the United States

U.S. Copyright law does not recognize moral rights beyond the extent to which they are recognized by the Berne Convention, of which the U.S. is a member.

The rationale for the lack of additional moral rights protections in federal law is that Congress believed that they were unnecessary because other areas of law are sufficient to protect artists’ interests. U.S. copyright law, governed by the Copyright Act of 1976, already grants artists the exclusive right to create derivative works. Defamation laws, unfair competition laws and trademark laws governed by the Lanham Act grant artists sufficient civil claims against entities who intentionally or recklessly mislead the public about an author’s work and those who attempt to profit from such conduct. Moreover, certain states have created their own moral rights laws, mitigating the need for a federal statute.

Furthermore, the Visual Artists Rights Act of 1990 (VARA) provides increased moral rights to certain types of art i.e. paintings, drawings, prints, sculptures and still photographic images that are produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. These rights include the right to claim authorship, the right to prevent the use of one’s name on any work the author did not create, and the right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation. Authors of works of “recognized stature” may prevent the grossly negligent or intentional destruction of their work. The phrase “recognized stature” has not been statutorily defined, but there is a lot of case law interpreting the same. VARA rights only apply to a limited set of works but the protections for those works are substantial. Buyers of the works must get written waivers from the copyright owners if they wish to employ any VARA rights. If the rights are not waived then the author or last surviving author of a joint work generally retains them for life.

What are the arguments for keeping the moral copyright laws as they are?

Proponents of the sufficiency of U.S. moral rights law argue that VARA grants vast protection to artists. VARA rights generally last for life and they can only be extinguished by signed, written waivers. They are secure enough to ensure that artists have recourse to act when owners of individual instantiations of their work infringe their creative rights. Furthermore, even when VARA rights don’t vest in an artist’s work, he or she can still utilize copyright, defamation, unfair Competition laws, or any relevant state statute, to defend moral rights of their work.

What are the arguments against keeping the moral copyright laws as they are?

Opponents argue that there are many works that VARA does not protect. For example, VARA doesn’t apply to written works or to works made for hire. Also, since copyright law does not protect ideas, an author who is known for innovating an idea cannot utilize copyright law to protect the moral rights to that idea. Finally, state moral rights laws vary and it is difficult for an artist to know if the state he or she is located in will have jurisdiction over the alleged infringer of their Moral Rights.

Conclusion

Given that art is so subjective and so rarely indexed, it can certainly be difficult for artists to protect their work. There are many different kind of laws in place to protect artists’ copyrights, including some laws that loosely protect moral copyrights. While there are disagreements about the effects and implementations of the laws, its clear that artists’ works do need to be protected.

Resources

Primary

Cornell University Law School: Visual Artists Rights Act of 1990

U.S. Congress Committee on the Judiciary: Copyright Law Revision

Additional

McClanahan Powers: Innocent Copyright Infringers: The Importance of an Adequate Copyright Notice to Defeat Them

Electronic Frontier Foundation: New Study Affirms Fewer Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0

Copyhype: Who Benefits from Copyright?

Law and Economics Consulting Associates: Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions

Harvard Law School: Moral Rights Basics

Library of Congress: Waiver of Moral Rights in Visual Artworks

Washington University in St. Louis: Economists Say Copyright and Patent Laws Are Killing Innovation; Hurting Economy

TechDirt: Yet Another Study Shows That Weaker Copyright Benefits Everyone

Buffalo Intellectual Property Law Journal: A Case of Bad Credit? The United States and the Protection of Moral Rights in Intellectual Property Law

Washington and Lee Law Review: Toward an American Moral Rights in Copyright

Boston University International Law Journal: Protecting Moral Rights in the United States and the United Kingdom

Information Today: Moral Rights for Authors and Artists

Stanford Encyclopedia of Philosophy: Intellectual Property

Brian Leiter’s Law School Reports: Protecting Philosophical Ideas With Copyright?

U.S. Copyright Office: Reproduction of Copyrighted Works by Educators and Librarians

College Art Association: Intellectual Property and the Arts

Leech Tishman: Litigation; a Counterfeit Pays

Golden Gate University Law Review: The Visual Artists Rights Act of 1990: Further Defining the Rights and Duties of Artists and Real Property Owners

vLex: VARA Rights Get a Second Life

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

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Lawsuits and Copyright Infringement Made in America

Ashley Shaw — Thu, 11 Sep 2014 14:26:15 +0000

Image courtesy of Eric Garcetti via Flickr.

I don’t know about you, but I had a great Labor Day. My sister Ariel flew up for the weekend, and we stuffed our days full of fun activities like seeing Book of Mormon on Broadway and going to a Yankees vs. Red Sox Game. We laughed, cheered, and created the “Adventures of Stick Figure Amber” – where I drew our annoyingly absentee sister into every single picture and gave her some wacky adventures of her own in an effort to pretend she was there.

Perhaps the highlight of this trip was what we did on Saturday and Sunday: attend Jay Z’s “Made in America” music festival in Philadelphia. We saw tons of great acts – one being Kanye West. (We also saw that in our advanced old age of early-to-late twenties, we were perhaps already too old for this type of event. I’ve never wanted to say “Do your parents know you are here?” more than when I saw all those pre-teens dressed in practically nothing openly drinking and doing drugs. Kids today! But that is straying from the point…)

As Ariel and I danced (rather I jumped up and down like an idiot while Ariel stood still glaring at me with disdain) and people-watched, we had no idea what shameful secrets were brewing just underneath the surface. (That might be an overly dramatic opening to what I am about to write.)

The lawsuit about which I am going to tell you is not really all that funny or even out of the ordinary; however, it is really exciting because it kind of, sort of, on a tangent, not really but I’m counting it deals with an event that I was attending. And that makes it interesting to me if to no one else.

Courtesy of gifsoup.

Did you know that “Made in America” the music festival was named after a Jay Z and Kanye song with the same name? Brooklyn rapper Joel McDonald didn’t. Or rather, he knew it was named after a song with the same title, but he was under the impression that it was his song, not the rap legend duo’s. He came to this conclusion based on the fact that he sang and sold on iTunes this song in 2009, but it was done by Jay Z and West in 2011 — with no mention of McDonald there.

Let’s compare…

McDonald’s song:

Jay Z and Kanye’s song:

Are they the same? McDonald hopes people will think they are close enough, because to celebrate the third annual “Made in America” festival, now located in Los Angeles as well, McDonald sued for $3 million for copyright infringement in Manhattan Supreme Court.

What do you think: Will Jay Z soon be in a little less of an empire state of mind or will McDonald find out that New York isn’t the concrete jungle were dreams are made for everyone? Was Kanye acting more stupidly or did McDonald say something when he gon’ end up apologin’? Will Jay Z…I could go on with these all day.

Ashley Shaw

Ashley Shaw is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, playing trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time. Contact Ashley at staff@LawStreetMedia.com.

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Sherlock Holmes: A Winner for Book Publishers

Joseph Perry — Mon, 01 Sep 2014 10:30:59 +0000

Image Courtesy of [givingnot@rocketmail.com via Flickr]

Early last month, the Seventh Circuit of Appeals held that the Sir Arthur Conan Doyle Estate must pay attorney’s fees to plaintiff, Leslie Klinger. The payment of attorney’s fees is the latest setback for the Conan Doyle Estate in its attempt to block the publication of Klinger’s two Sherlock Holmes anthologies without first obtaining a licensing fee. In mid-July, Justice Elana Kagan denied the Conan Doyle Estate’s stay (i.e., blocking the Seventh Circuit Court of Appeals ruling).

For the readers who don’t know the background preceding the lawsuit, let me summarize it for you: Klinger, who is a Sherlock Holmes scholar, co-edited two Sherlock Holmes anthologies, A Study in Sherlock and In the Company of Sherlock Holmes, which contained new and original short stories about Sherlock Holmes by contemporary authors. The Conan Doyle Estate claimed that Klinger needed to obtain a license from the Conan Doyle Estate to publish A Study in Sherlock with Random House and a second license to publish In the Company of Sherlock Holmes with Pegasus Books. Klinger believed he did not need a license to publish the anthologies because he believed the Holmes and Watson characters were in the public domain. Although Random House acquiesced and purchased a license, Pegasus Books refused to finalize its author agreement with Klinger if he did not seek a license. Thus, stuck without a book contract with Pegasus, Klinger sued the Conan Doyle Estate in 2013 and sought a declaratory judgment (i.e., a legal determination by a court about a particular uncertainty between the parties) on pre-1923 and post-1923 story elements in the Sherlock Holmes canon, including but not limited to, characters, character traits, dialogue, etc., in order to determine whether or not Klinger needed a license from the Conan Doyle Estate.

In December 2013, a federal district court in Illinois ruled in favor of Klinger by stating that he needed to obtain a license from the Conan Doyle Estate for post-1923 story elements but did not need a license for pre-1923 story elements. In June, the Seventh Circuit of Appeals affirmed the Illinois district court’s decision and stated that Klinger did not need to obtain a license for his anthologies because the Holmes and Watson characters were in the public domain.

Justice Kagan’s denial of the Conan Doyle Estate’s stay likely signifies that the lawsuit has finally come to a close. Klinger’s win is advantageous to book publishers because publishers likely do not need to obtain a license from the Conan Doyle Estate to publish anthologies or other literary works. Moreover, Klinger’s victory affects the movie and television industries, which seem to almost always have a Sherlock Holmes television show or motion picture airing or in post-production.

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Is There A Legal Way to Offer Fast Fashion to the Masses?

Katherine Fabian — Thu, 31 Jul 2014 10:33:39 +0000

I’m just going to cut to the chase: I hate Forever 21. Don’t get me wrong, I spent plenty of my parents’ money there on a seasonal basis when I was a teen, but by the time I was 17 I had completely sworn off the fast fashion mega-chain. Ironically, I used to shop at stores like Forever 21 and H&M because their merchandise was strikingly similar to the clothes I would see in magazines. But the more I immersed myself in the industry, the more I learned that these stores were the antithesis to the look I was striving to emulate. Forever 21 blatantly copies designers’ prints from big names like Diane von Furstenberg to independent clothing boutiques. In publishing that’s called plagiarism, but in retail it’s called making fashion “accessible” to the masses.

Courtesy of Simka sol via Facebook

The whole concept behind Forever 21 disturbs me. I used to walk into a store in complete awe, wondering how I was ever going to manage to thoroughly browse through all of the trendy merchandise. Now I walk in and feel disgusted.

I first noticed something was off about the store when I visited a three-level unit at the Garden State Plaza, much larger than any other store I had seen before. The bottom floor was overstuffed with sale merchandise. Upon seeing this I immediately thought, “What do they end up doing with all of these clothes? Surely, not that many people end up buying sale when there’s so much on-trend and reasonably-priced merchandise upstairs.” I pictured those factories where they shred old clothes and realized that even if the store never sells most of its sale merchandise, it will hardly make a dent in the company’s revenue. Forever 21’s clothes could cost around 20 cents to make and they sell them for $20 apiece, that’s a 1,000 percent markup. Something about that just doesn’t seem right.

Copyright laws allow for retailers like Forever 21 to copy garment designs, but not any prints that designers place on their garments. Which, if you think about it makes a lot of sense. Most clothes are made with one of a few possible patterns and ultimately it is what a designer puts of those patterns that makes their work unique and innovative. Considering part of their job description involves designing prints, how is it fair for them to do all the work only for someone else to come along and sell the same thing at a fraction of the price? Not to mention that fast fashion retailers can make a whole lot more money off of a copyrighted item by selling it in mass quantities.

Left: A dress by Diane von Furstenberg Right: Forever 21’s version. Courtesy of Susan Scafidi via Counterfeit Chic

Granted, the role of a fashion designer is also to set the example so other fashion retailers can sell on-trend clothing to the masses. However, trends usually dictate a silhouette or color that is “of the moment.” Sometimes a particular generic print may be in style, for example leopard print, but in that case there are so many variations that retailers can make that it is completely unnecessary for them to literally copy a designer’s version of that print. So why does Forever21 win or settle nearly every lawsuit filed against it?

In addition to over 50 copyright lawsuits, the company is also notorious for numerous labor violations. So not only does it cheat designers out of profits, but it also fails to pay employees fairly. Employee lawsuits go as far back as 2001, when workers claimed they were being paid under minimum wage. There was even a three-year boycott of the retailer by its U.S. garment workers. This year, U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) fined three stores with over $100,000 in safety violations.

Despite all of the company’s lawsuits and violations, Forever 21 is one of the largest clothing retailers in the world, so independent designers and small design firms often do not stand a chance against it. Also, Forever 21 has a history of settling before cases are ever brought to trial. Susan Scafidi, fashion law professor at Fordham University, explains that “they’ve been caught so many times, they’ve been publicly exposed so many times, they’ve even been sued — although many fewer times, because all they do is settle — this is just part of their business strategy. They go ahead and they take what they want, and when they get caught, they pay up. It’s probably cheaper than licensing it in the first place.”

The way Forever 21 runs its business is unnecessary as there are plenty of other retailers who run honest businesses, while still offering on-trend merchandise. Despite their involvement in the Bangladeshi factory collapse last year, Gap is a respected retailer in the industry and often collaborates with high-end designers and the Council of Fashion Designers of America (CFDA) in order to provide designer fashions to the masses. In fact, the recent explosion of designer collaborations with retail chains like Target, J. C. Penney, and H&M is the perfect antidote to the moral fast fashion dilemma. When designers willingly and legally offer their pieces to retailers, then there is no need to copy their designs because consumers can have access to the real thing at their desired price-level.

High-end designers control trends in this industry, but large chain retailers control how these trends get delivered to about 90 percent of consumers. Stricter copyright laws should be implemented in order to protect the artistic integrity of these designers. The garment industry is just like any other creative industry, so if it’s illegal to copy famous works of art, it should be illegal to copy wearable works of art as well.

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Katherine Fabian (@kafernn) is a recent graduate of Fordham University’s College at Lincoln Center and is currently applying to law schools, freelance writing, and teaching yoga. She hopes to one day practice fashion law and defend the intellectual property rights of designers.

Featured imaged courtesy of [Adam Fagen via Flickr]

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

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Memes and Selfies: Internet Trends Bring New Copyright Issues

Brittany Alzfan — Wed, 30 Jul 2014 15:21:07 +0000

Memes are fun–they’re customizable, shareable, and all over the internet. But they do bring up some important questions about copyright laws and photo ownership. For example, many of you have probably seen the “confused face girl” meme that has gone viral all over social media. While most people find this meme utterly hilarious, a news story spread last week that the “face” of the meme–a girl named Keisha Johnson–wasn’t laughing. In fact, she supposedly tried to sue Instagram for $500 million for copyright infringement and defamation because people keep using a picture of her posted on Instagram as a meme. This story ended up being a fake, created by the satirical news outlet OD Gossip, but news organizations who didn’t know any better still picked it up.

Thanks Hundike

Here were the made-up details of Johnson’s legal battle:

The 16-year-old Alabama native was just hanging out with her friends when one of them took a bad photo of her and uploaded it to Instagram. Almost instantly, the photo went viral and was shared on millions of profiles, including those of celebrities. In addition to turning the photo into a meme, people everywhere have been posing for their own “confused face” photos in apparent attempt to mock Johnson. Clearly embarrassed by the photo, Johnson said, “my face looked ugly like I was about to throw up. I look nothing like that in real life… I’m really a bad b*tch!”

While this made-up girl named Keisha Johnson did not, obviously, sue Instagram for $500 million, the story and resulting press attention got me thinking: what would happen if someone were to actually sue Instagram? Well, according to the Instagram terms and conditions that every user must agree to before they sign up for the social media site, people who use the network are responsible for the content that they choose to share. Now in fairness, in the hypothetical story, Johnson was not the one who posted the photo. However, according to the terms, her friends would have been 100 percent responsible for choosing to embarrass their friend. So hypothetically, if the girl in the photo were to sue someone, it’s her friends who are responsible for deciding to post a bad photo of her, not Instagram.

The site OD Gossip also released another fake story about another fake lawsuit–this time over a selfie that was turned into a meme. According to OD Gossip, “Makayla Edwards,” known more commonly as the topless boy/girl face a** meme, has also decided to file a defamation lawsuit against Instagram. Just like the story about Johnson, this is a hoax, but there have been millions of photos posted to people’s Instagram accounts making fun of the meme. The photo has also popped up on sites like Facebook and Twitter.

Now as previously established, the fake “Makayla Edwards” cannot sue Instagram for people choosing to repost her photo. But, is there anything stopping her from suing the people who reposted her photo? In order to figure this out, I looked into copyright laws and how they apply to social media selfies.

First, it’s important to understand the basic copyright laws for online images. Copyright attaches to a work, in this case an image, as soon as it is created. Unlike with patents and trademarks, people do not need to apply for a copyright, it’s automatic. So once you create an image–by drawing it, creating it on the computer, or by taking a photo–you have the rights to do whatever you want with it. This includes reproducing it, displaying it publicly, altering it, selling it, and distributing it.

But most of us don’t create our own images, we use ones created by others. In order to legally use someone else’s image, you must get express permission from the copyright owner and, once you get permission, give them proper credit for the image. Now, there are ways that you can legally use a copyrighted image without getting permission, such as by using one with a creative commons license, but these likely do not apply to social media photos.

So what are the rules when it comes to social media, where people constantly and publicly post their photos for anyone to see? According to Social Media Today, images posted on social media sites are still bound by copyright. This means that if you want to use or re-post someone else’s photo on Facebook or Instagram, you need their permission.

So these made-up lawsuits are not completely ridiculous–they probably could happen, although for way less money. However, if anyone has a reason to sue, it’s the person who took the picture, not the girl in it. And they wouldn’t be suing Instagram, but the millions of people who re-posted the photo without permission. Still, next time you snap a silly selfie, or take a bad picture of a friend, these rules are something to keep in mind.

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Brittany Alzfan (@BrittanyAlzfan) is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

Featured image courtesy of [Shawn Ahmed via Flickr]

Brittany Alzfan

Brittany Alzfan is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

The post Memes and Selfies: Internet Trends Bring New Copyright Issues appeared first on Law Street.

Copyright is Killing the Internet Viewer’s Experience

Imran Ahmed — Tue, 01 Apr 2014 15:29:31 +0000

I was recently scanning YouTube for content on Daniel Day-Lewis and I came across his best actor Academy Award acceptance speech for Lincoln in 2013. While watching the clip, I noticed something odd. Take a look a the first minute or so and see if you notice anything a bit off.

Notice anything? If you thought it was strange that there were no clips of the Oscar-nominated performances, then you’re in the good company of yours truly. Editors at the Academy of Motion Picture Arts and Sciences removed the film footage of the actors’ performances before uploading the clip to YouTube. So, if you want to witness a short example of these excellent performances, you’ll have to settle for a few still shots of the actors in character instead.

The reason for this excising lies in contract law. When The Academy wants to show the short video montages, they must first contract with the owners of the films for permission to show the clips. These contracts usually grant The Academy the right to show the footage at the Oscars ceremony and for a one-year period after the airing of the show. Since YouTube videos generally survive longer than a year, The Academy must cut the films when they put the video up on YouTube in order to comply with their contractual obligations.

Mostly, I just wonder what purpose the one-year rule serves. I speculate that the rule emerged before sites like YouTube existed. Copyright owners of the films being nominated figured that they would grant the Oscars the right to use a video montage of their films during the show and probably created a one-year window as a generous allowance in case The Academy wanted to play re-runs. In the age of YouTube, few reasons exist why the copyright owners hesitate to grant the Oscars the right to replay the video montage forever. The Oscar video montages carry no risk that a user can somehow pirate the film and watch it illegally. Rather, the video montage appears as free publicity, inducing the viewer to seek out the film. Yet, copyright owners still insist on limiting the right to show the video montage.

The harm done to a user might be small when searching for Oscar acceptance speeches, but other shows rely more heavily on clips. For example, on a series like “Inside the Actor’s Studio,” James Lipton curates the clip selections, and they play an important part in understanding the breadth and excellence of the featured actor’s work. If you watch a YouTube version of Inside the Actor’s Studio, you will usually notice that the clips have been removed just like in the Oscars. Moreover, your experience will suffer as a result of this cropping of content.

Copyright owners should realize and respect that content has a longer shelf life in the internet age. Many instances arise where these copyright owners should grant longer licenses. Not doing so harms the user experience while doing little to prevent copyright violations.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Martin Fisch via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

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Will Streaming become Illegal?

Zachary Schneider — Thu, 27 Feb 2014 17:57:47 +0000

Featured image courtesy of [ericnvntr via Flickr]

Internet legalities, security, and commerce are confusing. There a lot of gray areas when it comes to what is legal but also, the consequences for internet crimes are clearly lacking as well. If there is no fear of the law, what incentive is there for people to abide by the law? One ubiquitous internet crime is piracy, or the act of obtaining copy written content without paying for it. This type of crime is conducted by a variety of methods; among them are peer to peer downloading and streaming.

Let’s take a look at the history…

Obtaining content online first commenced with downloading information from a single location. Downloading is the process of copying data, usually an entire file from a main source to a peripheral device. The term is often used to describe the process of copying a file from an online service or bulletin board service (BBS) to one’s own computer. During a direct download, you are only downloading the file(s) from an individual server unlike a torrent.

Today, torrenting is much more popular, where users download crowd sourced content. Torrenting is the act of downloading files from a large network in which all of the users are sharing the same file. A torrent allows you to download the file from multiple users, with the capability to also share some of it back. Both the act of downloading and torrenting content violates the Copyright Act of 1976.

While it is evident that downloading/ torrenting is an issue looking at Voltage Pictures Case, the new issue in piracy is streaming. Streaming is simply the method of relaying the data over a computer network as a steady continuous stream, allowing playback to proceed while subsequent data is being receive

It is significantly more difficult to file lawsuits against perpetrators who are streaming; they are not hosting or sharing the file. Likewise, obtaining IP addresses and personal info of people who stream videos is complicated. Torrents are much easier to track due to file sharing during downloading. This in itself, make torrents easier cases to prosecute. For the time being, companies mainly target the low hanging fruit- people who download from torrents.

Most notably, the latest streaming issue is with Aereo. Currently, Aereo batting television providers in the Supreme Court. They created an antenna that could receive “free” television, and then charged others to view it using the cable from their antenna.

So is streaming content safe and legal?

Streaming is a slippery slope for prosecutors, as there are no definitive answers to this question. The answer depends on many variables including the site and file type. Due to the lack of any conclusive rulings, the legality of streaming is in a state of limbo. In an attempt to clear the air, the Copyright Office contends there is no violation when a reproduction manifests itself in a fleeting manner that it cannot be copied, perceived or communicated. Though the law is convoluted, it is useful to note that owners, such as the Motion Picture Association of America, rarely go after individuals who watch streaming movies. Illegal or not, it’s costly and difficult to track these users down.

Even if the ruling comes down as piracy, I would compare this activity to jaywalking. Yes, it is considered illegal. Yes, you should not do it. But the fact of the matter is everyone does it.

[Mother Jones] [Aereo]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

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TV Streaming Makes it to Supreme Court

Anneliese Mahoney — Mon, 13 Jan 2014 19:04:14 +0000

In 2012, a new company called Aereo launched. It offered a revolutionary new way to watch TV. Essentially, Aereo provides subscribers with a small antenna about the size of a dime that receives TV signals. The dime is kept in a remote local area and then streams TV to any device in the house with Internet access such as a computer, tablet or smartphone. In addition, it’s possible to send the content to an actual TV if you have the correct cables or a streaming device such as Apple TV. Aereo also includes a DVR feature. All of this is extremely cheap–it costs about $1 a day, plus some DVR storage charges. Aereo began in New York City, and now includes Atlanta, Dallas, Denver, Detroit, Houston, Miami, and Salt Lake City. They have plans to expand to most other major cities in coming years. Aereo mostly streams basic channels and public access–not cable. For some more background on the company from the Intellectual Property side, check this out.

Aereo is a great solution at a time when more and more people, mainly young people, can access most of their TV needs online. Services like Netflix and Hulu+ are cheaper than a traditional cable plan. Itunes allows you buy a subscription to one show for a season, which is convenient when you only want one show on a given cable network. I don’t have a TV or cable package–people are always shocked when I tell them this, but a combination of Netflix, inviting myself to watch shows at friends’ houses, and other internet sources work just fine for me. Earlier this year, a tech reporter for HuffPost reviewed Aereo and was pretty happy with the convenience for a cheap price.

Almost as soon as Aereo started, it received ire from the largest broadcasting companies. ABC, NBC, CBS, and FOX are officially involved in lawsuits, while other networks, such as Univision, have voiced their support for their fellow networks. The case has gone through a few series of appeals, and as on Friday, the Supreme Court announced their decision to take the case. On every appeal, the courts have so far sided with Aero.

The legal argument made by the broadcasting companies boils down to the fact that they are not receiving compensation for Aereo’s services, the way they do from a company such as Verizon or a local provider. Aereo also doesn’t have a license to show any of this content. Paul Clement, a lawyer for the network stated the case raised issues in copyright law that, “profoundly affect, and potentially endanger, over-the-air-broadcast television.”

Aereo’s response is that they do not create public performances, which law prevents, but because they just send individual signals, that is not the case. They just access the signals that the TV channels have broadcasted, and that consumers have always had the right to use antennas to access TV. The court has sided with Aereo twice on that argument so far, but the start-up still encouraged the Supreme Court to take the case.

The case does have some interesting potentially implications. For example, if Aereo wins, some broadcasting companies may move towards subscription streaming (FOX has already threatened this), which would be costly and difficult.

The ultimate question at issue here is, as it seems to be so often these days, the intersection between law and technology–technology has clearly outpaced the law. But is that a bad thing? The Supreme Court will shed some light on that topic in coming months.

[ABC News]

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Miguel Pires da Rosa via Wikipedia]

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The Cellphone Come Up: How Selling Your Cell Can Pay Your Rent

Gena Thomas — Tue, 17 Dec 2013 11:30:34 +0000

So…I hate Sprint. The service is unreliable, slow, and (appropriately) the laughing stock of networks — unless you’re in a room with a Cricket or T-Mobile user. But it’s cheap and I’m a recent graduate so I take what I can afford. I’ve thought about switching from Sprint to Verizon quite a few times and lucky for #TeamiPhone, I can do this with a simple phone call (plus maybe a shitty termination fee) and voila!

But what if you have a phone that isn’t carried by the network you wish to join? Well, then you’re screwed. But even if you have a tech-savvy friend who can ‘hook it up’ by unlocking your phone — even if your contract has ended — he or she can face criminal penalties. Last year, the Library of Congress announced that utilizing software to bypass a carrier’s network limitations is a copyright violation. This ruling centered on the notion that “unlocking” a cellphone requires the alteration of software so that it may be accessible to other wireless companies. The cellular providers asserted that locking cell phones is part of its business practices. CTIA, the Wireless Association that includes cellular networks such as AT&T, Sprint, and Verizon, contended that phones have been traditionally locked as an integral aspect of the carriers’ business models. So, essentially, the carrier pays a fee to the cell phone’s creator (think Apple and Nokia) and the carrier receives a promise from the creator to utilize that particular carrier as its premier network. But who pays for these wireless barriers in the end? We do.

If we can use our cellphones on any network, then service providers would be forced to lower their prices because of an increase in competition. But in all fairness, there is a possibility that switching from one network to another could produce technical difficulties. A phone may be only partially functional on certain networks because not all carriers’ technology is compatible with that of another. However, if carriers are forced to allow the unlocking of phones, the barriers between each entity will undoubtedly be lowered because they’ll have to adapt to the change in law.

This new agreement requires mobile carriers to notify consumers that they may legally unlock phones once their contracts are up. Let’s throw one back for the increase in transparency among these mobile carriers. And honestly, can’t you use the money? Not only will we be exposed to cheaper service rates but we’ll also able to resell our old phones more easily because there will be less concern with network compatibility.

So start digging up those old Blackberrys and Razors — we’ve got a bigger market and more ways to bustle the hustle in 2014.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Tiz via Flickr]

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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End of the Internet as We Know It: Trans-Pacific Partnership Agreement

Gena Thomas — Mon, 09 Dec 2013 17:41:44 +0000

On November 13, WikiLeaks, a nonprofit media organization that prides itself on divulging imperative information to the public, leaked a draft of the Trans-Pacific Partnership (TPP) agreement. The agreement was being secretly negotiated among our government’s policymakers in order to avoid public uproar and backlash that may result in the watering down of some of the agreement’s regulations. If there is a need to smuggle proposed legislation into enactment in a democratic society for fear of being met with opposition, then maybe the law isn’t representative of the majority’s voice.

This law is far worse than SOPA and PIPA combined. It’s a “free trade” pact between 12 countries, including the U.S., Canada, and Mexico. What it really is is an agenda effectuated by corporate powerhouses that want greater intellectual property protection at the cost of freedom of expression and creation.

Three key provisions of the TPP that will affect you and should elicit your interest:

Our internet service providers will become the copyright coalition. The Digital Millenium Copyright Act’s (DMCA) takedown notice procedures provide Internet Service Providers (ISPs) with safeguards against suit for copyright infringement committed by its users. If a user is accused of infringement, the ISP, upon receiving the takedown notice, must immediately delete the infringing content pending a determination of infringement in order to avoid liability for the posted material. If you think this is unfair, the TPP takes it a step further. The TPP grants legal incentives to these internet middlemen in exchange for their participation as copyright police (essentially). Why does this matter? Well these provisions could potentially result in the filtering of user content for possibly infringing material. Websites that may contain infringing material, including social media hangouts, have a chance of being blocked by these ISPs so that the provider can circumvent liability for infringing material transferred through the internet. And think about it from an economic standpoint. How much would it cost for ISPs to comb through every bit of user-generated content to determine if there are copyright concerns? It’s definitely a lot more than simply running a prudent internet service that limits access to certain sites and web platforms.

Patent powers will be used for evil. The TPP makes patents more easily accessible for the pharmaceutical industry by including an entire section in the agreement devoted to opening the pathways to patent protection for specifically this industry. Additionally, patent applicants in this industry will be able to limit the availability of the scientific info that was utilized to create the medicine, which operates to give the pharm moguls a huge amount of leverage against other creators. The price of medicine will undoubtedly increase, and I think that was the whole purpose of this particular law to begin with.

Protection will infringe on constitutional rights. Our constitution aims to encourage invention and the arts by limiting the time period for which a holder of intellectual property can assert his or her rights. This law proposes to extend the years of copyright protection by 20 years and thus further minimize the amount of information available in the public domain from which new works can be created.

And that’s only just the tip! For the full leaked version of the Trans-Pacific Partnership agreement, click here. I strongly advise you to look it over or read a few summaries on it when you get the chance. The availability of knowledge and legal space for innovation will be dramatically decreased by the TPP. And should our democratic values be neglected in the interest of corporate wealth? NO! So do something.

Please take a few seconds to sign this petition to stop the TPP here.

Gena.

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Featured image courtesy of [hdzimmermann via Flickr]

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WordPress Takes Action Against Censorship

Gena Thomas — Wed, 27 Nov 2013 16:29:21 +0000

Happy Holidays Law Street readers!!!

Have you missed me? It’s only been two weeks, but it feels like a month has gone by since I’ve checked in. No need to DTR –I know in my heart we’re exclusive.

As I was exploring the crevices of my bag of emotions, I came across a bit of news about the platform that I use to communicate on here, WordPress. WordPress is the conduit through which material is posted to the site you see before you. Side note: I know that I don’t give copyright law a lot of my love so this one is for you, girl.

The company that owns WordPress, Automattic, has proclaimed its intentions to sue Straight Pride UK, an anti-homosexual group for “knowingly materially misrepresenting” a copyright infringement claim. Yep, that’s a crime. It all began in August, when Straight Pride utilized the Digital Millennium Copyright Act (DMCA) to issue a takedown notice to Automattic for material that was posted on the blogging site. The material consisted of an interview given by the anti-gay collective to a student journalist, Oliver Hotham. Hotham then posted the interview to his blog, which had been delivered to him via Straight Pride’s press representative in an attachment titled “Press Release.” Straight Pride claims that the interview was instead intended to be a private release and included a notice that the content was not permitted to be reproduced without consent. Automattic originally complied with Straight Pride’s takedown notice (the DMCA mandates such action to avoid further suit), but announced this past Thursday that enough is enough. In a recent blog post, Paul Sieminski, general counsel for Automattic, noted that these censorship actions have become “increasingly common” and are especially “infuriating.” Thank you, Paul.

Here’s what I think. Blog sites, such as these, need to put those cojones on display every so often. The DMCA serves to protect copyrightable material, not to stifle unbecoming content so that it never sees the light of day. It wasn’t meant to chill speech but rather to provide incentive for authors to share their expressions with the public. It seems to me that this material was given to Hotham willingly and that it also falls under the fair use provision of the Copyright Act allowing for the reproduction of content for comment or criticism. The DMCA shouldn’t be used as a vehicle to trample over our First Amendment rights! If bloggers have to post in fear of legal action, the purpose of blogging – sharing reviews on material that’s usually already public – will be muted. Of course, certain legal parameters must be in place to maintain a sense of order just as we have in our physical lives, but where is the line drawn? When does protection morph into suppression?

My only issue with this is that I wish the notion of ceasing internet censorship would have been brought up on a less politically polarizing matter. I fear that the issue of censorship will get lost among the gay rights activists’ amicus briefs. I’m not at all implying that gay rights is not paramount to censorship (because I honestly believe it is) but even now I’m finding myself getting lost in between the rock and hard place that these two issues present. They should be flushed out in turn and on their own merits.

Read the entire complaint against Straight Pride here.

Gena.

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Featured image courtesy of [Armando Torrealba via Flickr]

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Google vs. Authors Guild: The Fight is Finally Over

Zachary Schneider — Tue, 19 Nov 2013 15:14:09 +0000

It seems as if Google is always caught in the midst of a lawsuit. This time, has Google gone too far? Judge Denny Chin doesn’t think so.

Over the past eight years, Google has been in constant conflict with the Authors Guild, the not-for-profit American organization of and for authors, arguing the legality of Google Books.

Google Books, formally known as Google Print, is a revolutionary technology, initially introduced at the Frankfurt Book Fair in October 2004, that compiles millions of full-text books and magazines for public use.

Since the inception of Google Books, not much has changed. The documents continue to be scanned and converted into text through a process called optical character recognition where they are finally stored in a digital public database for users all around the world to use.

This has been an excessively drawn out copyright fight between juggernaut Google and the Authors Guild. And now, it is finally over, as Judge Denny Chin ruled in favor of fair use as it is something that benefits the masses. So as long as it benefits the masses, should it be partially free? (Healthcare anyone?)

John Locke is probably turning in his grave right this instant.

John Locke, an english philosopher and physician, unequivocally believed in the idea of private property. If you create it, you claim that territory, conceive an idea, it is all yours—a sacred western value that the United States treats very seriously.

The ruling on Google Books completely turns this idea on its head. Furthermore, this is a landmark case because it could create a precedent for future court cases when it comes to copyright law.

Judge Chin’s overarching argument is that Google allows readers to discover books, therefore it will bring new income to the readers.

Judge Denny Chin made the ruling based on the fact that Google’s digitization of the source material is “highly transformative” and won’t interfere with the original market.

Now, this case is much bigger than it actually seems. On the surface, Judge Denny Chin’s decision seems great, enabling the world access to more than 20 million books. Unfortunately, this ruling utterly decimates the idea of copyright.

Copyright is a legal concept that gives the creator exclusive rights and protection over original works of authorship, ranging from literary artistic, and musical intellectual works. The author alone has the right to replicate, distribute, perform or display copies of his or her work.

This court case may be appealed as the judge basically ruled that as long as it benefits the masses, copyright really isn’t much of an issue. It renders everything copyright stands for utterly useless.

Will this court case be appealed? Probably. As of now, this “essential research tool” is available for everyone to use.

[Business Insider] [Gigagom]

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Featured image courtesy of [Lin Kristensen via Wikipedia]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

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Kicking Broadcast and Taking Names: The Aereo Method

Gena Thomas — Thu, 07 Nov 2013 15:00:17 +0000

Last Thursday, Aereo requested that a federal court in Manhattan rule that its business offers legal services. The gist of Aereo, founded in New York, is to transmit local TV broadcasting to pai subscribers of the service over the internet. As a Comcast customer who’s consistently unsatisfied with my service features to monthly payment ratio, I can envision the untapped market that Aereo is attempting to reach. Consumers still want their daily intake of local news, and occasionally some Grey’s Anatomy and Scandal, but don’t want to be obligated to pay $80 a month for additional channels that their schedule doesn’t permit them to enjoy.

The service is $8 per month and enables customers who don’t want to pay ridiculous amounts for cable television to access local broadcasting. Broadcasters have asked the U.S. Supreme Court to chime in and voice their perspective on Aereo’s services. This is long overdue as Aereo has already been subjected to suits in New York, Boston, and now Utah by major broadcasters such as ABC, NBC, and CBS. Broadcasters argue that their copyrights are being violated because Aereo is taking their signals without their permission and showcasing them to online viewers. Conversely, Aereo points out that it is already legal for viewers to use their own antennas and pick up local tv broadcasts. Additionally, viewers can legally record these broadcasts and replay them at a later time. The Aereo method is to rent out tiny antennas, capture free content in the public airwaves, and stream the content to your internet-enabled devices. So essentially, Aereo only utilizes tools that are legal, making broadcasters throughout the nation cause an uproar in our judicial system because the service has found a way to circumvent their licensing fees.

Federal courts in New York and Boston have allowed Aereo to continue to operate throughout the pending lawsuits, noting that broadcasters have not shown a high probability of winning their cases to warrant an injunction. The service launched a year ago, and there are already (approximately) 90,000-135,000 subscribers of the Aereo service in New York alone.

There is no copyright infringement here, ABC. That’s why injunctions have been denied, and the service has been upheld in different locales for over a year now. The real reason that the broadcasters are experiencing mood-changing-panty-bunching is because Aereo is threatening to interrupt the television system that brings them billions of dollars each year. Cable companies, such as Comcast (I HATE YOU, COMCAST!), charge us a shit-ton to view local broadcasting, such as NBC and ABC, because they pay these broadcasters billions in retransmission fees to include their shows in subscriptions. And what does Aereo pay? Nothing.

Perhaps this is why Comcast was so eager to haggle with me when I threatened to cancel my service a few weeks ago. Makes sense. If cable companies don’t begin offering better prices, sooner rather than later Netflix, Apple TV, and now Aereo will replace them faster than DVD players won over VCR owners. And I’ll be the first to go.

I either need to cancel my service, get a hanger and try to reel in some news stations for myself or practice what I preach and join Aereo when it arrives in D.C.

Gena.

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Featured image courtesy of [Pablo Menezo via Flickr]