Of Glasshouses, Stones and Copyright Infringement

German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

NewzBin2: some reflections

So much has already been written and posted on today's judgment of Mr Justice Arnold in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) ("NewzBin 2") that it is difficult to think immediately of a fresh slant for coverage on this blog.  In short, for those who may have missed it, NewzBin's rather crude attempt to keep its Usenet internet indexing website going has been smitten by an order that internet service provider BT block users from accessing NewzBin's website.  The order actually sought runs like this:

""1. The Respondent [i.e. BT] shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:
(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.
(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.
2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.
3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses)".

A fairly lengthy account of NewzBins 1 and 2 appears on the IPKat here. and the BBC's report is here.

Rights-owners are predictably jubilant at their victory in what is very plainly stated to be a test case (though, curiously and perhaps for subtle strategic reasons, other ISPs which were invited to intervene in these proceedings declined to do so).  A lot of work has gone into preparing the ground for this action. Given the state of the law and the nature of the damage inflicted, the victory was deserved.  In contrast, those who are not rights are owners are equally predictably critical. While no-one appears to have a good word for NewzBin itself, there are wider issues afoot.

Among the more interesting comments is that of Andrew Orlowski, writing for The Register here:

"It's fascinating to hear arguments such as BT's contention that it is not an internet service provider, or that Newzbin2 members were passive recipients, and just happened to have anime and pirate movies pop onto their PCs ... or that after notification from a copyright-holder, an ISP could claim that it hadn't been notified. These are surreal arguments [Andrew's right, and this blogger wishes that this sort of thing would stop. It wastes the court's time, distracts us all from the core issues and does little to enhance the public's image of the legal profession].

The voluntary plan at meetings chaired by Culture Minister Ed Vaizey – one floated by publishers, music and movie industries and the Premier League – permits speedy judicial review of site-blocking on a site-by-site basis. BT was the strongest opponent in those talks – perhaps hoping for a favourable decision from Arnold.

That hasn't been forthcoming.[It surely wasn't likely to be forthcoming either, in the light of the ruling in NewzBin 1 and given that Arnold J is not known to be a fantasy judge]

Site-blocking not only runs contrary to the classic liberal spirit of English law – I have seen no exemption mooted for journalists or researchers – but it also has another consequence. It makes rights-holders look like they're keener on legislation than on creating new markets for content. Despite a smashing victory, they should be careful what they wish for ['creating new markets for content', like 'creating new business models', is becoming an increasingly hopeless cry as it becomes ever more apparent that there are no realistic and sustainable business models without enforceable copyright -- with the possible exception of micropayment schemes -- and no realistically enforceable copyright in the face of technological advance]".

Readers' comments and reflections are welcomed.

Meltwater: Never mind Infopaq, Court of Appeal preserves old British 'original literary work' test

"Clear, careful and
comprehensive": Mrs
Justice Proudman upheld
on appeal

Today's ruling of the Court of Appeal for England and Wales in The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890 has upheld the ruling of Mrs Justice Proudman (noted on this blog by Hugo here) that end-users of media monitoring service Meltwater required end-user licences to access and use search results consisting of the headline of each article which mentions the search term (which hyperlinks to the article), the opening words of that article and an 11-word extract showing the context in which the search term appears.

A longer description of the factual background appears on the IPKat this morning, here. This post focuses on what the Court of Appeal said about the Court of Justice of the European Union ruling in Case C-5/08 Infopaq, which has caused a good deal of consternation in copyright circles of late. The question before the Court of Appeal at this juncture was whether a headline could be protected by copyright as an original literary work. Said the Court:

"19. The starting point [is] s.1(1)(a) CDPA. To satisfy that subsection the headline must be "a work" and both "original" and "literary". A headline is plainly literary as it consists of words. The word "original" does not connote novelty but that it originated with the author. This test was clearly established in the domestic law of England by the decision of Peterson J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. 

20. The decision of the European Court of Justice in C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 related to questions of infringement but in paragraphs 33 to 37 the Court considered the conditions necessary to attract copyright protection. The Court said: 

"33 Article 2(a) of Directive 2001/29 [the Information Society Directive] provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author's right to authorise or prohibit reproduction is intended to cover 'work'. 

34 It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. 

35 Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author's own intellectual creation. 

36 In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. 

37 In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation."

Although the Court refers to an 'intellectual creation' it does so in the context of paragraph 35 which clearly relates such creation to the question of origin not novelty or merit. Accordingly, I do not understand the decision of the European Court of Justice in Infopaq to have qualified the long standing test established by the authorities referred to in paragraph 19 above".

Good news for those who have been uncomfortable with Infopaq. Bad news for those who don't like the idea of headlines being potentially protectable as copyright works.

Harry Potter and the Idea/Expression Dichotomy

Amid the kerfuffle over the News of the World phone-hacking scandal, shaving foam humble pie, and wife Wendi's bodyguard skills, I almost failed to notice the latest (and hopefully last) instalment in the Willy the Wizard v Harry Potter plagiarism saga.

For those who would like to refresh their memories of the history of the case, see previous posts on the 1709 Blog here, here and here, and on the IPKat here. In short, Adrian Jacobs authored a book entitled "The Adventures of Willy the Wizard" and had it published in 1987. In 2004, his estate accused JK Rowling of having copied substantial parts of the book and using them in the first five books of her "Harry Potter" series. The claims referred especially to the fourth book, "Harry Potter and the Goblet of Fire".

Acccording to reports in, among others, the Guardian (here) and the BBC (here), the case was struck out, rather boringly, because the estate of Adrian Jacobs failed to pay the security for costs ordered by Mr Justice Kitchin and confirmed by the Court of Appeal.

If you are disappointed and keen on some idea/expression dichotomy exercise, you may still get it, and on three different levels at that:

- Level 1 ("I really don't have much time"): read the article in the Telegraph (here)

- Level 2 ("Willy the Wizard? I'm intrigued"): go to the "Willy the Wizard" homepage and have a look at the extracts from the book (here)

- Level 3 ("I only read contributions by the judiciary, thank you very much"): peruse Mr Justice Kitchin's account of similarities in Allen v Bloomsbury Publishing Plc & Anor [2010] EWHC 2560 (Ch), paras 20-47 (here). And bear in mind his statement at para 85:

"[C]opyright does protect the content of a literary work, including the selection, arrangement and development of ideas, facts, incidents and the like. In assessing the crucial question as to whether a substantial part has been taken, the court must have regard to all the facts of the case including the nature and extent of the copying; the quality and importance of what has been taken; the degree of originality of what has been taken or whether it is commonplace; and whether a substantial part of the skill and labour contributed by the author in creating the original has been appropriated."

Jewel cases! Get your empty jewel cases here!

Over one thousand burned DVDs, a small shop in Orlando, Florida, and the county Economic Crimes Unit, a combination that has “uh-oh” written all over it.

The shop owner tried to claim that what he was doing was legal because he wasn’t selling the DVDs.  He was giving the DVDs away for free, for promotional use only, with the purchase of a $5 empty jewel case.

The newspaper reporting the results of the search warrant execution states that Mr. DVD-seller is facing felony charges under state law. However, the Florida statute that appears to be most applicable, 540.11, doesn’t seem to quite address the facts at issue here. The first two subsections making it unlawful to copy and sell DVDs only applies to sound recordings fixed prior to February 15th, 1972.  The next two provisions make it illegal to copy “performances.” There’s no definition of “performance” in the statute, so it’s unclear whether movies would fall under this provision.

If movies do count as performances, then Mr. DVD-seller is in trouble. Section (2)(a)3. makes it illegal to copy articles embodying performances with the intent to use those articles to cause the sale of other articles. Hmm… now why would someone pay $5 for an empty jewel case when a pack of 10 retails for nearly half that price on amazon.com?

A Florida case involving infringing CDs, rather than DVDs, suggests section (3)(a)1. might be applicable here.  In that case, it was clear that the CDs themselves were for sale.  If the court doesn’t allow the “I’m only selling the jewel cases” line to fly, then this provision could possibly be applicable.  The real tricky thing here is that half of the provisions talk about sound recordings and half talk about performances. Neither term is defined and neither obviously covers movies.

But don’t worry.  Even if Mr. DVD-seller manages to slip through the cracks of Florida’s state laws, he’s still in deep trouble under Section 506 of the US Copyright Act.

The Orlando police were alerted about Mr. DVD-seller by the MPAA.  Maybe he shouldn’t have set up his shop in a town owned by Disney.

Photo credit:Jewel case in the snow cc-by-nc eleda 1.

WPP moves to cut of advertising cash for infringing websites

In another example of how the imagined 'Wild West' of the internet is (slowly) being tamed by proactive business practices which can run alongside new legislation and court decisions, advertising giant WPP has announced a list of 2,000 websites in the USA which it says carry illegal or pirated content and will not be used for advertising for the group's clients. The list will be used by the media buying agencies within WPP's GroupM business and executives in those companies have been told not to buy any advertising on those site - and since they have a combined annual spend of $6 billion, $3.5 billion in the US alone – that’s quite a major move. WPP's clients include Ford, Unilever, AT&T and IBM and interestingly their client list also includes two major labels - Universal Music and the Warner as well as the Paramount film company. The list will be regularly updated.

GroupM Interaction's Global CEO Rob Norman told reporters: "We're serious about combating piracy and protecting our clients' intellectual property as forcefully as we possibly can. This policy extends to digital media buyers at all GroupM agencies, as well as other WPP companies like Team Detroit, which manages Ford's media business". According to The Guardian, among the sites blacklisted are access-anything.com, albumhunt.com, extratorrent.com, fileseek.info, free-tv-show.com, gpirate.com, kickasstorrents.com and laptop-downloads.com. Last year Google pledged to stop websites that infringe copyrights from using its adwords service.

http://www.guardian.co.uk/media/2011/jun/08/wpp-groupm-sir-martin-sorrell

Origami artists bring action against Morris

Six origami artists from around the globe are bringing a US legal action against artist Sarah Morris, accusing her of using their works in her own. The origami artist's lawsuit says that some of Morris's collection of 37 abstract works simply titled 'Origami' are nothing more than coloured in versions of their own intricate works of folded paper which feature humming birds, grasshoppers, beetles and other creatures. The lawsuit, filed in California by the six artists whose home countries include Spain, Italy, Japan and the USA, says that in 24 of Morris's works, she copied the original origami crease patterns, changed the colour schemes and then exhibited the works without permission from the original creators of the patterns and designs, saying that the new works by Morris are "strikingly similar to copyrighted artworks". In an interview on her gallery's website she says that "for me, origami is a sign of change. It is always used ... like a harbinger of change. And what the change is depends on your projection of change. You know its an open structure and. Its like an open vessel". Morris had reportedly said that she had based the Origami series on "found origiami designs" and "traditional patterns". It is reported that Morris's lawyer, Donn Zaretsky, told Art Newspaper the case was "completely without merit and we look forward to defending the matter in court. Its hard to think of a clearer use of transformative fair use".

More at http://www.guardian.co.uk/artanddesign/2011/jun/05/tate-artist-sarah-martin-origami-lawsuit

Kookaburra still up the gum tree, but judge feels disquiet

In February, in "The kookaburra wins down under", Ben posted this note on the Australian ruling that Men at Work copied Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. There's a neat note here from Australian law firm Allens Arthur Robinson (here) on the dismissal of Men at Work's appeal by the Full Court of the Federal Court in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

A case note from another Australian law firm, Davies Collison Cave, focuses on the following comment of Emmett J, in which he expressed some disquiet concerning the finding of infringement:

"If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…".

US IP Czar wants illegal streaming to be a felony

The White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, has submitted 20 recommendations to Congress aimed at cracking down on copyright infringement on items ranging from drugs to music and military equipment – calling for more effective law enforcement and tougher penalties for people convicted of copyright infringement. In particular Espinel urged Congress to make illegally streaming copyrighted content online a felony saying that online piracy and counterfeiting are "significant concerns" for the White House causing "economic harm and threaten the health and safety of American consumers".

Espinel has recommended that Congress act to "clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances." Bob Pisano, president of the Motion Picture Association of America (MPAA) commented "Closing the legal gap between two methods of equally destructive illegal behavior - unauthorized downloading and streaming -- adds more clarity to intellectual property law and, frankly, makes good common sense”.

Espinel own Report states that "Foreign-based and foreign-controlled websites and web services raise particular concerns for US enforcement efforts. We are aware that members of Congress share our goal of reducing online infringement and are considering measures to increase law enforcement authority to combat websites that are used to distribute or provide access to infringing products."
The list of proposals suggests that Congress legislates for longer sentences for many counterfeiting offenses, including selling fake military or law enforcement items, trade secrets and bogus drugs. The White House also calls for wiretap authority in counterfeiting and trademark investigations.

The recommendations gathered widespread praise from a range of groups, including the US Chamber of Commerce, which urged the Obama administration to make the US a "miserable place for counterfeiters and pirates". Perhaps unsurprisingly MPAA also applauded Espinel for "recognizing the danger posed to our workforce by theft, both in the online and physical marketplace, and by making the protection of the creative workers and their craft a top priority.

Espinel also included a proposal to allow a levy on terrestrial radio stations for playing recorded music in a move that will bring the USA into line with Europe and which drew support from the Recording Industry Association of America although US broadcasters were less than impressed.

http://www.dmwmedia.com/news/2011/03/15/us-quotip-czarquot-espinel-make-unauthorized-streaming-felony

Image: Ian Britton: freefoto.com

Spain rejects 'US influenced' copyright bill

After a narrow vote, a Spanish parliamentary commission has rejected a controversial bill aimed at protecting content owners from internet downloaders. All of the main Spanish parties, except for Prime Minister Jose Luis Rodriguez Zapatero's Socialists rejected the so-called Sinde Bill, named after Culture Minister Angeles Gonzalez-Sinde. The draft legislation would have set up a government commission which would have then provided courts with details of websites offering access to copyright-protected material such as music, movies, video games or software. A judge could then have ordered the closure of offending websites.

The bill sparked furious opposition from internet users who accused the government of violating the freedom of expression but Gonzalez-Sinde said the law only intended to put an end to Spain's position as a 'paradise of piracy.' Techdirt put a different slant on things, firstly praising Spain’s “somewhat more reasonable copyright laws than other parts of the world” highlighting provisions that say that “personal, non-commercial copying is not against the law and also says that third parties should not be liable for copyright infringement done by their users” adding that obviously Hollywood ‘hates’ this and that Spain's recently introduced reform package seemed like a “checklist of the entertainment industry's wishes" and that one of the recent Wikileaks diplomatic cable leaks showed that “US diplomats played a role in pressuring the Spanish government to make these changes, at the behest of movie industry lobbyists”.

http://www.techdirt.com/articles/20101221/15434012367/spanish-legislature-rejects-hollywood-backed-copyright-law-changes.shtml

Read all about it - new book is a real Page turner!

Robbie Williams co-manager Tim Clark has told the Popkomm conference that the U.K.’s recently passed Digital Economy Act – aimed at curbing Internet piracy – was “laughable and unworkable" saying that "It allows ISPs to sit on their hands for longer, knowing they are off the hook,” claiming one major label CEO agrees with him that the Act is "a waste of time” and “is never going to work.” Clark said that “the truth is digital technology has driven a panzer division through copyright law” (an interesting choice of words given the location of the Berlin based event) adding “If 70% of the population are ignoring a law, it’s no longer a law – we have to figure out a new way of working with copyright.”

Trent Reznor, Nine Inch Nails front man, has been at the forefront of creating new music business models for copyright which combine new media and traditional business models – offering free internet downloads of albums alongside premium internet products, limited edition CD and vinyl box sets, special merchandise and other paid for product – in an eclectic mix of free and paid for. Now Jimmy Page, the legendary guitar hero from Led Zeppelin, recently voted the best ever rock band in a BBC Poll, has announced that he will be releasing a limited edition signed photo-memoir priced at £445 bound in silk and leather. The Book was trailed in the Sunday Times Magazine two weekends ago with new and unseen images, and now 2,500 fans can get their hands on the unique book which will contain more than 700 Page picked photographs, starting with the guitarist as a 12 year old choirboy. If the band’s recent massively oversubscribed and sold out 02 reunion is anything to go by, selling 2,500 copies won’t be a problem for Page – whatever the price. Page was described by Rolling Stone magazine as “probably the most digitally sampled artist in pop after James Brown” but he and his publisher Genesis Publishers seem to have hit on a neat revenue generating idea here – free from the worries of digital copyright infringement – and which will net them a cool million – well actually £1,112,500.00.

Photo Sean Preston (c) 1995

Fair Use, the Standard Hail Mary

When a judge starts his opinion, “For the fourth time we consider on appeal…” you get the impression he’s a little annoyed and tired of seeing these two parties in court.

That’s exactly how Judge Michael of the United States Court of Appeals for the Fourth Circuit started his opinion in the latest iteration of Bouchat v. National Football League. (full opinion).  The case began over a dozen years ago when Bouchat first brought suit against the NFL and one of its teams, the Baltimore Ravens.

Bouchat designed the first Ravens’ logo used in the mid-90s, except the Raven’s didn’t acknowledge this, didn’t license Bouchat’s work from him and didn’t pay him any royalties for the use of the “strikingly similar logo.”  So Bouchat sued and won and got absolutely no damages. Obviously not happy with this outcome, he attempted to sue other companies that had manufactured and sold goods bearing the Ravens’ logo.  That didn’t pan out well for him either. 

Then, 10 years after the original suit against the Ravens and NFL for using the logo on its helmets and fields, Bouchat tried again, suing again for copyright infringement but this time for using the logo in a highlight reel that includes video of those original uses and for displaying the logo on historical memorabilia in the franchise’s headquarters.  (How an expansion team that’s been in existence for less than 20 years has enough highlights for a full-length video is beyond me, but then I come from hardcore-football land.)

The Play: Fair Use

The Ravens tried to claim fair use of the logo, citing its use in the highlight reel as historical and non-commercial. The district court agreed and found in favor of the Ravens.  The appellate court disagreed and reversed.

Fair Use in the Film - Blocked

Under the US Copyright Act, fair use in analyzed against four factors: Purpose and character of defendant’s use of the work, the nature of the copyrighted work, the amount and substantiality of the portion of the work used compared to the whole, and the effect of the use on the potential market for the copyrighted work.

Looking at the logo’s original use in the footage rather than the usage of the footage itself in the highlight reel, the appellate court found that the use was not transformative.  The logo was used to identify the team.  A standard use for a logo.  Additionally, the highlight reel was sold commercially giving the use of the logo a commercial purpose. [When a defendant’s use is transformative or non-commercial, the use is more likely to be deemed a fair use.]

The appellate and district courts agreed with each other on the second fair use factor, finding that the copyrighted work was highly creative. The logo is a drawing of a flying B.  [When a work is very fact-based or only minimally creative, the factor leans in favor of fair use.]

The third fair-use factor is probably the one responsible for misleading 10% guides and other myths that suggest there is a certain set amount of a work one can take without infringing.  In this case, the court did not need to consider any percentages; the entire work was used.  This was a place where the appellate court disagreed with the district court as the district court had compared the logo to the entire video content instead of to itself.  [The less of the work that is used, the more likely there will be a finding of fair use.]

The defense attempted to rely on the absence of damages awarded in the previous lawsuits to show that there was no market for Bouchat’s work, but the court disagreed.  “The licensing of NFL logos for use in the sale of official team merchandise, in exchange for royalties,is exactly the type of potential market that exists for Bouchat’s copyrighted logo.”  [If the use has little to no impact on the potential market, it is more likely to be fair use.]

Having found that all four fair use factors weighed against fair use, the court held that the Ravens were liable for copyright infringement for showing the Bouchat logo in the highlight videos.

Fair Use in Memorabilia – It’s Good

When analyzing fair use in terms of the memorabilia displayed in the lobby, the court came to a different conclusion.

With the video, original footage showing the original use of the logo was deemed not transformative and for commercial purposes.  However, when displaying an original ticket with the logo in a location open to the public free of charge, the court found this use to be both transformative and non-commercial.  “Most important, the use of the logo in a museum-like set-ting "adds something new" to its original purpose as a symbol identifying the Ravens.”

The second factor analysis remains the same as above since the work is still highly creative.  Interestingly enough, although the amount of the work used under the third factor did not change, both the ticket and the video used the whole work, the court found the third factor to be neutral in the lobby display context.  The court decided that using the whole work was justified in relation to transformative nature discussed under the first factor.  (Professor David Franklyn of the University of San Francisco stated at this year’s American Bar Association meeting that the transformative factor has morphed fair use; this use of transformative to justify taking the entire work seems to be a good example of Professor Franklyn’s concern.)

Transformative is brought in again for the fourth factor, with the court stating that transformative uses are less likely to have an effect on the potential market.  The fact that Bouchat presented no evidence to support any market harm didn’t help either.  The court found the fourth factor to be in favor of fair use.

The court held that it was fair use to display the logo on memorabilia in the lobby.

Final Score – not quite

Finding one use as infringing and the other as fair, the court remanded and sent the case back to the district court to decide whether an injunction is appropriate.  After all that, the review from the booth overturned the ruling on the field and it’s back to the game to find out who will win in the end.

He Had a Go at Have a Go, but Had to Go

The reality is often far less exciting than the expectations we conjure up -- and the litigation in Meakin v British Broadcasting Corporation, Paul Smith and Celador Productions [2010] EWHC 2065 (Ch), 27 July 2010, raised initial hopes that we would get some hugely important ruling on the protection of TV game-show format rights. As it was, the troops spent years lining up against each other (Meakin first complained of infringement in 2004) but the battle was over before it started, Mr Justice Arnold (Chancery Division, England and Wales) granting the defendants summary judgment against Meakin's claims of copyright infringement.

Meakin had claimed, inter alia, that the defendants had infringed his copyright in proposals for his Cash Call TV game-show formats and that they used information in his proposals in a manner which constituted a breach of confidence. His claim focused primarily on a programme broadcast by the BBC called Come and Have a Go ... If You Think You're Smart Enough. Arnold J analysed the viability of the copyright claims by reference to two issues: was the defendants' work derived from Meakin's or was it a reproduction of a substantial part?

As to derivation, the similarities between the Cash Call proposals and Have a Go were insufficient to create an inference of copying: the similarities were general and related to features that were commonplace in the TV game-show arena and at a high level of abstraction. After applying the same analysis of the works' similarities, the judge also concluded that Meakin had no real prospect of proving reproduction of a substantial part of his work.

Infopaq: The Sequel

This weblog has already noted the ruling in Case C-5/08 Infopaq International A/S v Danske Dagblades Forening, a reference to the Court of Justice of the European Union for a preliminary ruling from the Danish Højesteret. Responding to this reference, which dealt with the legalities of what might be termed a modern equivalent of a cuttings agency, the Court of Justice provided just two answers to the 13 questions referred. This June there arose another reference in which the same court, with the same litigants before it, has asked some of the same questions, either in the same form or with some modifications (see today's IPKat post here).

What the Kat didn't mention, but might interest true copyright agitators and lobbyists, is that you've got a chance to make observations on the questions. The UK's Intellectual Property Office invites your comments by next Monday, 16 August 2010 (please email them here so that the UK can decide whether it wants to get involved). The deadline for observations to the Court is 15 October 2010.

What’s Your Motto?

I just love it when hip hop artists get involved in law suits; it’s the best way to learn their full real names (and generally get in a good chuckle). These cases also tend to result in a bunch of crinkly old men, and sometimes women, parsing street slang and debating the similarities of ways to describe females. Usually good for another round of amusement.

Blessing us with a new wonderful opportunity for fun is Deandre Cortez Way, aka Soulja Boy Tell ‘Em, who is being sued for copyright and trademark infringement (and unfair competition, unjust enrichment and consumer protection act violations) for some postings on his website and a tattoo on his chest.

The plaintiff in the suit is Clement Brown, Jr., owner of the clothing line Laundry Money. He claims that he has a valid copyright infringement for the following grouping of words and phrases, which is the Laundry Money slogan:

grind…hustle hard…double up…
flip…stack…get your weight up…
save…cop…invest…re-cop…reinvest….
own your own business…
buy property…network…
build credit…stay determined…
stay focused… stay dedicated…
and Keep…
LAUNDRY MONEY
”clean clothes 4 dirty work”

Brown alleges that Soulja Boy has infringed the Laundry Money slogan in his S.O.D. Money Gang Code of Honor, which is as follows:

Grind.. Hustle.. Double Up.. Flip.. Stack.. Get Yo Weight Up.. Save.. Shop.. Invest.. Recoup.. Own Your Own Business.. Buy Property.. Network.. Build Credit.. Stay Determined.. Stay Focused.. Stay Dedicated.. Never Lie To Your Higher Authority.. Have Goals.. Always Represent.. Always Remember Money First.. Use Your Head.. Business First.. Plan Ahead.. Never Snitch.. Don’t Be Afraid.. Always Be Prepared.. Stay On Time.. Sleep 10%.. Gang Colors Yellow and Green.. Never Betray The Boss.. You Only Get One Shot.. GET MONEY….

There are some similarities; there are also some differences (beyond the fact that one party knows how to use capitalization and the other party, punctuation). For example, Soulja Boy’s rules work like my dad’s; there’s two “first”s. Laundry Money doesn’t specify if any of its mantra pieces are more important than the others.

The complaint says that Soulja Boy uses this Code of Honor on his website, in his cd booklets and has it tattooed on his chest. I was unable to find it on the Soulja Boy website, except in use as an id or in comments by “Team Soulja Boy” members, i.e. fans. Unfortunately, my Soulja Boy album is in storage, so I cannot pull out the booklet to look for the Code there.

As for Soulja Boy’s chest, the complaint quotes the tattoo as:

Grand Hustle
Invest Sleep 10%
Save Get
Money

That’s more than a little different than the long Laundry Money slogan above.

In addition to comparing the similarities of the texts, there are a number of other issues that the court may need to address, including:

• Coprightability of the original work, is it original?
• Access, this may come down to timing. Brown claims the slogan was created as early as 2004 and registered in July of 2008. Soulja Boy had his chest tattoo by November 2008 at the latest. Is Laundry Money as big as it says it is? When did it get big?
• Is a tattoo a fair use? (There’s a great resource on copyright tattoos available from Rebecca Tushnet’s 43(B)log here.)

Stepping up to the slang-parsing task this time will be the Honorable Judge Victoria A. Roberts of the Eastern District of Michigan. As someone who may be around teenagers more than your average judge, through her involvement with the Big Brothers Big Sisters organization, Judge Roberts may have any easier time working her way through the slogan and code of honor. Will be interesting to see what she has to say! (If the case doesn’t settle first…)

Case details and documents (for a fee) available here: Clement Brown, Jr. v. Deandre Cortez Way et al 2:10-cv-13016-VAR-MAR. Video of muzungu teaching Zambians how to do Soulja Boy’s dance here.

Photo: Soulja Boy playing X-box by Kevin cc-by available on Flickr.

Record industry mocked again as the cost of fan actions are made public

The Recording Industry Association of America's 2008 finances have been published with the revelation that the major labels trade body paid out over $17 million to the three legal firms who spearheaded the organisation's legal actions against file sharing fans. In return, they recovered $391,000 in damages. On his Recording Industry vs The People blog, Ray Beckerman analysed the same figures for 2006 and 2007 and claims that the trade body spent a total of $64,000,000 on legal and investigation firms involved in their “sue-the-fans” campaign during those three years, and these cases brought in a total of $1,361,000 in damages. The RIAA eventually dropped the strategy of suing individual fan after years of costly failures, bad publicity and widespread criticism of high profile cases against defendants such as Joel Tenenbaum and Jammie Thomas-Rasset. In the same year, the RIAA’s chief executive Mitch Bainwol was paid just over $2 million in salary ($1.9 million) and benefits ($123,000). President Cary Sherman was paid $1.33 million, Neil Turkewitz (EVP, International) was paid $696,000, Mitch Glazier (EVP, Government & Industry Relations), pulled in $566,000 and Steven Marks (EVP & General Counsel) received $562,000.

Young Guns Go For It

On Thursday Night (8th July) Berwin Leighton Paisner kindly hosted one of the regular bi-monthly BLACA meetings (British Literary and Artistic Copyright Association) and this one had a particular twist – the topic was copyright but seen through the eyes of two young copyright professionals, the joint winners of BLACA’s 2010 competition, the prize being the chance to make this presentation!

Chaired by Professor Alison Firth (University of Surrey), the first presentation was from Mark Smith, a newly qualified solicitor at Osborne Clark, and was simply titled “Copyright in the Digital Age”. I won’t dwell on the detail as this and the following presentation will both be available soon on BLACA’s website at http://www.blaca.org/ . Suffice to say, they are both well worth a read and Mark gave a professional speech in a wide ranging presentation. The second presentation was by Ed Cameron , who comes from a science background and has just completed a MSc in the Management of Intellectual Property at Queen Mary College, University of London. Ed focussed on the Digital Economy Act in a presentation titled “The Digital Economy Act - are ISPs under Attack?”. This Blogger has to admit he has not really looked at the finer details of the enforcement provisions of the DEA (particularly those referred to as the ‘three strikes’ system), and Ed did, where there was clarity in the Act, makes some sense of what look like rather complicated enforcement provisions. As with Mark’s presentation, read the detail online.

The sometimes challenging question and answer session was deftly handled by Prof. Firth and a recurring theme was the role of the collection societies in new business models, along with the need to educate the consumer and some comment on the failure of domestic and even the pan-European copyright regimes to provide effective enforcement tools for content owners in the global digital age. I have to say I thought both of the speakers did really well – a brave challenge for two young men who were students this time last year – faced with a room that included some well seasoned copyright lawyers ..... and a few less seasoned ones as well!

Details on this year's BLACA prize can be found at http://www.blaca.org/prize.htm

More freshly-squeezed Lime

In a fresh blow, peer-to-peer file-sharing service LimeWire has been sued for copyright infringement by eight member companies from the National Music Publishers Association (NMPA) headed up by EMI and Universal. The lawsuit is similar to the thus far successful suit filed by the Recording Industry Association of America (RIAA) against LimeWire and its executives, seeking damages and injunctive relief and is also filed in the Manhatten federal court. A trial is scheduled for January and the NMPA said in a statement “The songs that make their illegal venture lucrative don’t appear out of thin air .... Behind every song is a vast network of people - a songwriter, a publisher, a performer, a record label. They have robbed every individual in that chain.”

Limewire publicly remains convinced it can offer legitimate business models to the content owners in the music industry saying in a statement "We have had many promising meetings with labels, publishers, and artists alike about our new music service and a business model that will compensate the entire industry”.

EMI April Music Inc. v. Lime Wire LLC, 10-cv-04695, U.S. District Court, Southern District of New York (Manhattan).

http://www.dailytech.com/New+Suit+Against+Limewire+Could+Total+15+Times+Music+Industrys+Yearly+Income/article18769.htm

Why you won't find Specsavers in the Thesaurus ...

In "Synonyms – a shortsighted attempt to avoid copyright infringement", Tim Golder and Nadia Guadagno discuss Budget Eyewear Australia Pty Ltd v Specsavers Pty Ltd [2010] FCA 507, a recent Australian Federal Court decision in which interim injunctive relief was granted to restrain the use and publication of an advertising campaign where the alleged infringement consisted of the substitution of synonyms for the plaintiff's original work.

In short, Budget alleged that Specsavers' print ad and itscorresponding terms and conditions infringed copyright in two versions of a print advertisement, a radio script and a set of terms and conditions under which an offer in the advertisements were made, seeking interlocutory relief for infringement. Budget pointed to the following phrases as reflecting originality:

'If your Specsavers glasses break – and we're not saying they will – simply bring them into Budget Eyewear. We'll replace them with [sic] pair from our own range – free of charge';

'We're not saying they will, but if your Specsavers glasses break, we'll replace them for free'; and

'If your glasses aren't all they're cracked up to be, don't worry, we'll come to the rescue. For the next two weeks... you can take any Specsavers glasses to your nearest participating Budget Eyewear store and we'll replace them with a pair from our range – free of charge'.

Specsaver's print ad contained the following phrases:

'If your OPSM glasses happen to break, and we're not saying they're going to, we'll exchange them with a pair from Specsavers with a 2 year guarantee, for free'

'If your prescription glasses aren't what you hoped for, don't stress – we're here to help. From Thursday 13th May to Thursday 27th May, take any broken OPSM glasses to your nearest Specsavers store and we'll give you a pair from our range – for free'.

Did copyright subsist in the works? Before asking whether there had been infringement, Bennett J first had to establish whether copyright subsisted in the works at all. She felt there was sufficient evidence of authorship for the purposes of seeking interim relief, and said Budget had an arguable case that

"the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection ... the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality".

On the issue of infringement, Specsavers acknowledged the a causal connection since it had read and absorbed Budget's advertisement and did not deny it had copied the text of Budget's ad for its own ads; it also accepted that it had copied the idea of the campaign, although this copying did not extend to exact word reproduction. Said Budget, Specsavers had sought to avoid infringement by the simple use of synonyms; Specsavers in return argued that the use and arrangement of the words and phrases in the ads was 'obvious and prosaic' and since there was a lack of any requisite originality.

Justice Bennett agreed with Budget that Specsavers chose to adopt the same expression of ideas where various means could have been used to express the concept. Specsavers could have copied the idea but exercised its own imagination to express that novel concept in new and different language. rather than "using a thesaurus" to substitute a synonym. Accordingly a prima facie case of infringement had been made out.

Says the 1709 Blog, if the original Budget ads had been more imaginative and less prosaic, Specsavers' synonyms might -- at least in an application for interim relief -- been clad with the figleaves of parody and/or commercial free speech. Even so, the message is clear: that well-known Thesaurus Rex no longer rules the world of advertising copy, if indeed it ever did.