Filmmaker Says Unearthed Songbook Proves ‘Happy Birthday’ Is in Public Domain

30 July 2015

From Variety:

There’s a twist in a long legal tangle over the copyright to “Happy Birthday to You.”

First, though, it’s a surprise to many that there is still a claim to copyright on the song, which is sung, well, just about anytime and everywhere anyone is marking a birthday.

Warner/Chappell Music’s claim to own the rights is being challenged in a federal court, and a documentary filmmaker now contends that she has a “smoking gun” proving that the song’s copyright protection expired long ago, if it ever had protection in the first place.

The filmmaker, Jennifer Nelson, was making a documentary about the history of the song, and paid a license fee to Warner/Chappell for its use. But she and her company, Good Morning to You Productions Corp., filed a lawsuit in 2013 challenging the music publisher’s claim to the song.

In a recent court filing, her lawyers say that a batch of documents produced by Warner/Chappell includes a PDF copy of a 1927 songbook that includes the “Good Morning and Birthday Song,” but with no copyright claims identified. Instead, it includes this line: “Special permission through courtesy of the Clayton F. Summy Co.” Her attorneys also obtained an earlier, 1922 version of the songbook, again with the song and no claim of copyright.

Summy Co. was a music publisher of the time.

. . . .

Under the laws of the time, her attorneys contend, the work fell into the public domain as it did not include a notice that it was under copyright.

But Warner/Chappell argues that the Clayton F. Summy Co. did not own the copyright in 1922 — and that at the time, “Good Morning to All,” on which it was based, was already in its renewal term.

The origin of “Happy Birthday to You” is traced to to a 1893 manuscript for sheet music that included the song “Good Morning to All,” which was written by Mildred J. Hill and her sister, Patty Smith Hill. The song was first published in 1893 in “Song Stories for Kindergarten,” and later the lyrics to “Happy Birthday” were adapted to the song’s medley.

Warner/Chappell contends that Jessica Hill, a sister who had inherited Mildred Hill’s interest in the song after her death in 1916, renewed the copyright to “Song Stories,” which included “Good Morning to All,” in 1921.

. . . .

Warner/Chappell acquired the company that claimed ownership of the song, Birch Tree Hill, in 1998. It has collected license fees for the use of the song in movies, TV shows and other music productions.

The plaintiffs attorneys argue that the 1935 copyright registration covers only piano arrangements.

Link to the rest at Variety and thanks to Casey for the tip.

Since you’ve been wondering about copyright notice for several days, here’s a brief primer.

Since 1978 under US law and since March 1, 1989, under the Berne Convention Implementation Act of 1988, use of a copyright notice on a copyrighted work is not mandatory.

Prior to 1978, under the 1909 Copyright Act, in the US, any publication of a copyrighted work authorized by the copyright owner that did not contain a proper notice of copyright, all copyright protection was forever lost in the US.

Even though not required for copyright protection, placing a copyright notice on your work is a good idea because it prevents an infringer from claiming that the infringement was innocent, thus possibly reducing the damages an infringer would be required to pay.

So, what is a proper copyright notice for a book? According to Circular 3 from the United States Copyright Office, three things are required:

  1. The symbol © (letter C in a circle); the word “Copyright”; or the abbreviation “Copr.”
  2. The year of first publication. If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology. The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles.
  3. The name of the copyright owner, an abbreviation by which the name can be recognized, or a generally known alternative designation of owner.

Example © 2012 Jane Doe

In some other countries, the word, Copyright, may not be a proper notice. © is recognized everywhere.

How do you get the © symbol? If you have autocorrect turned on in MS Word, when you type (c), Word will change it to ©. If that doesn’t work, you can use the Insert Symbols command in Word and hunt around until you find it. © is also ASCII symbol 169, so in Windows, if you hold the ALT key and type 0169, © should appear.

Speaking of (c), which is frequently used in place of ©, particularly in computer programming, PG remembers lots of disagreements in years past about whether (c) was a proper way of giving notice under the 1976 Act.

More recently, that argument seems to have died down. Since, under current law, the author automatically has a copyright as soon as the work is in fixed form without any notice, most attorneys would agree that (c) and © should both be adequate for the purposes of informing someone of a claim of copyright.

Is Amazon Liable For IP Violations By Its Marketplace Vendors?

24 July 2015

From Forbes Blogs:

Animal-shaped pillows are cute and fluffy, except when they spur litigation. Recently, the Milo & Gabby brand sued Amazon for IP infringement because merchants allegedly sold knockoffs of its “Cozy Companion Pillowcases.” Amazon has successfully avoided IP liability for its marketplace, and a recent ruling rejected most of Milo & Gabby’s claims. However, a key piece of Milo & Gabby’s claim survived Amazon’s dismissal attempt, leaving the possibility that Amazon could be liable for merchants’ IP violations.

. . . .

In 2013, Milo & Gabby sued Amazon in 2013 alleging a variety of intellectual property claims. In 2014, the judge dismissed several of those claims and narrowed the lawsuit to three claims:

* copyright infringement. Merchants allegedly used Milo & Gabby’s copyrighted marketing photos to advertise their knockoff goods. Even if true, the court says this isn’t Amazon’s direct responsibility because “the content of the detail pages and advertisements was supplied by third parties via an automated file upload system, and did not originate from Amazon.” In addition, Amazon qualified for the online safe harbor for user-caused copyright infringement (17 USC 512(c)) that Congress created in 1998 as part of the DMCA. On the key question of Amazon’s ability to control merchants’ infringing behavior, the court concluded that Amazon lacked “practical” control because it can’t “analyze every image it receives from third party sellers, compare the submitted image to all other copyrighted images that exist in the world, and determine whether each submitted image infringes someone’s copyright interest.”

* trademark infringement. Among other things, the court says Amazon wasn’t the seller of the allegedly infringing items because its “third-party sellers retain full title to and ownership of the inventory sold by the third party.” Thus, Amazon didn’t commit trademark infringement.

* design patents. Design patents protect non-functional “ornamental” product designs. In contrast to utility patents, which get lots of attention, most academics and practitioners routinely ignored design patents–until Apple scored a huge damage award in its fight against Samsung based on design patents. Now, lots of folks are keenly interested in design patents.

A design patentholder has an exclusive right to offer the patented item for sale. The court says a factfinder could conclude that Amazon offered the knock-offs for sale, even though the merchants posted the listings. The court explains:

While Amazon notes that the item is “sold” by a third-party vendor and “fulfilled” by Amazon, the fact that the item is displayed on the website and can be purchased through the same website, could be regarded as an offer for sale….Likewise, looking at the website, a potential purchaser may understand that his or her assent is all that is required to conclude the deal. Indeed, the website notes the price, allows the buyer to choose a quantity, and allows the buyer to then conclude the purchase.

As a result, the court sends the design patent issues to trial.

Link to the rest at Forbes Blogs and thanks to Dave for the tip.

Facebook’s Piracy Problem

13 July 2015

From Salon:

Destin Sandlin is a missile flight test engineer from Alabama who moonlights as a YouTube star. His science-y YouTube channel, SmarterEveryDay, boasts some 2.8 million subscribers thanks to viral hits like “The Backwards Brain Bicycle,” “A Baffling Balloon Behavior,” and the fabulous “Slow Motion Flipping Cat Physics.”

In September, Sandlin finally made a video he’d wanted to do for years. He toted a special high-speed camera to a tattoo parlor to capture the skin art process in painfully beautiful detail. “When I was editing it, I told my dad, ‘This is gonna be my biggest video,’ ” Sandlin told me. He was right. The result, titled “TATTOOING Close Up (in Slow Motion),” has racked up more than 20 million views in nine months.

So far it sounds like a classic YouTube success story. But it’s actually a story about a form of online piracy called “freebooting” that has grown rampant on Facebook in just the past year. Sandlin and other YouTube personalities are convinced Facebook is profiting from it—at their expense.
It’s also a story about a seismic shake-up in the online video industry. For the first time in its history, YouTube has a real rival. And Facebook isn’t playing by the same rules.

Two days after he published his tattoo video on YouTube, Sandlin got a message from one of his subscribers who had seen it on Facebook. It turned out his video was a viral smash there, too. In fact, it was spreading even faster on Facebook than it was on YouTube, with more than 18 million views in the first two days alone.

The problem was that Sandlin had never posted it to Facebook, and the version of it that appeared in millions of users’ News Feeds overnight wasn’t his. Rather, a British lads’ magazine called Zoo had apparently downloaded (or “ripped”) his video from YouTube, edited it to strip out references to Sandlin and his SmarterEveryDay channel, and posted the edited version on its own page, using Facebook’s native video player. It was an instant sensation, garnering millions of views and a raft of new followers for Zoo’s page. Sandlin, who puts some of the revenue from his YouTube videos toward his kids’ college fund, got nothing.

. . . .

Freebooting, to be clear, is not the same as simply sharing a link to someone’s YouTube video on Facebook. When you do that, Facebook embeds the YouTube video, and all the views—and advertising revenues—are properly credited to its original publisher. No one has a problem with that, including Sandlin. It’s how the system is supposed to work.

But it doesn’t work that way anymore—not well, anyway. That’s because, over the past year, Facebook has decided it’s no longer content to be a venue for sharing links to articles and videos found elsewhere on the Internet. Facebook now wants to host the content itself—and, in so doing, control the advertising revenue that flows from it.

Link to the rest at Salon and thanks to Dave for the tip.

The Authors Guild Petitions Congress for Unworkable “Notice and Stay Down” Provision

12 July 2015

From The Digital Reader:

The Authors Guild has just shown us that while they may have grown more author savvy under the new administration they certainly haven’t become any more tech savvy than they were before.

On Friday The Authors Guild published an open letter . . . that calls upon Congress to amend the DMCA and replace the existing notice and take down setup with the notice and stay down setup that has been proposed by the “let’s break the internet” crowd.

Under current US copyright law, internet service providers are shielded from liability for the actions of their users so long as the ISPs respond to legal notices from copyright holders.  This is known colloquially as the DMCA safe harbor provision, and it’s the legal bulwark that protects everything from Youtube to online forums.

. . . .

This is what is called the “notice and stay down” system. or as The Authors Guild put it:

We are asking for a “Notice and Stay-Down” regime: once a webhost knows a work is being infringed, it should not continue to receive “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all infringing copies of the same work.

There are a couple absolutely ginormous problems with their proposal.

. . . .

The first and most obvious is that the term “reasonable measures” cannot be discretely quantified; it is a matter of opinion. To ask Congress to legislate that idea into law is not a solution to current piracy issues so much as it is an invitation for lawyers to spend years in court running up millions of dollars in fees as they hash out the nuances.

But the larger issue with The Authors Guild’s proposal is that they based it on the mistaken assumption that one can readily identify pirated content.

. . . .

But more importantly, The Authors Guild believes that “Google and other ISPs clearly have the means to keep their sites free of most pirated content”, when in fact a cursory review of piracy prevention efforts makes it clear that it is damned difficult to separate pirated content from the chaff of legally used content.

Link to the rest at The Digital Reader

PG says this would also make the problem of improper take-down notices much greater.

Photographer accuses Taylor Swift of being a hypocrite over copyright in new open letter following her Apple victory

1 July 2015

From Metro:

Taylor Swift achieved a major victory today as her open letter to Apple persuaded the huge company to start paying artists for their streamed work during customers’ trial periods.

While many have congratulated her very swift win on the matter, prominent music photographer Jason Sheldon has since released an open letter of his own to the pop star, highlighting alleged double standards.

In it, he publishes a contract which Swift allegedly makes photographers sign which stipulates that they may only use the pictures they take once and that all rights belong to the artist.

His blog post on Junction 10 says: ‘How are you any different to Apple? If you don’t like being exploited, that’s great… make a huge statement about it, and you’ll have my support. But how about making sure you’re not guilty of the very same tactic before you have a pop at someone else?’

Link to the rest at Metro and thanks to Veronika for the tip.

E-book pirate party ends in UK as Australia mulls own site-blocking legislation

4 June 2015

From The Sydney Morning Herald:

Australia’s Copyright Agency has welcomed a decision by the British High Court requiring internet service providers (ISPs) to block access to websites hosting millions of pirated e-book titles.

The decision comes as a Senate Committee is due to submit its final report next week on site-blocking legislation in Australia, which would allow copyright holders to force Australian ISPs via the courts to block copyright infringing websites such as these.

The decision means Britain’s  five major ISPs – BT, Virgin Media, Sky, TalkTalk and EE – will be asked to block seven offshore-hosted websites within 10 working days.

The sites – AvaxHome, Bookfi, Bookre, Ebookee, Freebookspot, Freshwap and LibGen – are currently accessible in Australia and host download links to full copies of e-books, including from best-selling Australian authors such as Tim Winton and Fiona McIntosh.

If passed, the federal government’s Copyright Amendment (Online Infringement) Bill 2015, currently before the House of Representatives, would allow Australian publishers to apply through the courts to block “online locations” which facilitate piracy of content such as films, TV series, e-books and news articles.

. . . .

Other parties, such as consumer rights group CHOICE, have called site-blocking “demonstrably ineffective”, arguing that determined pirates can circumvent blocked sites with the aid of tools such as virtual private networks (VPNs). They also argue the costs of administering site-blocking will ultimately be passed on to consumers.

. . . .

The British High Court case marks the first time e-book publishers have sought an order forcing ISPs to block access to infringing sites.

The British Publishers Association said about 80 per cent of the 10 million or so titles hosted on the websites named in the case – and in some cases as much as 90 per cent – were found to be infringing copyright.

Publishers had already issued 1 million take-down notices relating to infringing material on the sites, the association said.

Link to the rest at Sydney Morning Herald

Publishers win landmark case against ebook pirates

27 May 2015

From The Financial Times:

British publishers have won their first ever blocking order against pirate ebook sites, as the battle over online copyright spreads beyond music and film.

A ruling by the High Court in London means that internet service providers, such as BT, Virgin Media and Sky, have 10 days to block access to the sites, which are hosted in Russia and the US.

The book industry has been less affected by piracy than music labels, thanks partly to the early development of a legal market in ebooks by Amazon. But piracy has nonetheless become a “huge issue” that is “particularly problematic in some genres, such as student textbooks”, researchers at Enders Analysis wrote last year.

. . . .

“Between them the sites purport to hold around 10,000,000 ebook titles and have been making substantial sums of money, primarily through referral fees and advertising,” said the Publishers Association, which represents publishers including Penguin Random House, part-owned by Pearson, parent company of the Financial Times. “None of this money has been going back to either the publisher or the author(s) of the works.”


Link to the rest at The Financial Times and thanks to Suzie for the tip.

FT is behind a paywall, but if the link doesn’t work you might try copying the title of this post (which is the title of the FT article) and pasting it into a Google search. That may give you a working link to the article.

Medium adds Creative Commons licensing for writers

7 May 2015

From The Verge:

Writing platform Medium is following the lead of services like Flickr and Vimeo and introducing Creative Commons copyright options for its authors. As of today, writers will be able to select between a variety of licenses that go beyond the standard “all rights reserved,” letting readers republish, translate, or otherwise remix their work. It’s partly a concrete attempt to expand the reach of Creative Commons, and partly an attempt to educate people about the range of options between traditional copyright and the public domain.

“Copyright is everywhere. It’s on everything, from the minute you put pen to paper, or finger to keyboard,” says Creative Commons CEO Ryan Merkley. “That means that we’re all copyright holders, whether we want to be or not.” But “even simple sharing under permissive terms is not easy,” he says. By default, copyright can cover a wide (and sometimes confusing) range of potential uses, some of which creators might not actually want to restrict — like a fan translating a blog post into another language.

There are six Creative Commons licenses, which range from only asking for attribution to barring commercial use and derivative works; users can also choose to release their work from copyright altogether. Existing Medium articles, meanwhile, will default to standard copyright protection. “We explicitly put in a description of what the licenses mean,” says Jamie Talbot of Medium. “Part of this is about educating the public that ‘all rights reserved’ is not the only option, and that there are these specific ways that you can give some freedoms to other people.”

. . . .

Individual authors could say that they’re using any of these licenses with or without Medium’s help. But creating a built-in option on other services has helped turn them into Creative Commons hubs. Flickr’s straightforward licensing options, for example, have made it a source of free, high-quality stock photos. Fiction platform Wattpad includes Creative Commons licensing as an option for its writers. Several other sites, like Wikipedia, have also incorporated the Creative Commons framework. “Ideas are most useful when they’re built upon and combined with others, and stories live through being reinterpreted, retold, modified, embellished,” says Talbot. “I think the Commons is a little-understood, but very valuable part of our culture, and we want to enable and be a part of that as much as we can.”

Link to the rest at The Verge and thanks to Jan for the tip.

Amazon Prime Video at 35,000 Feet

5 May 2015

From the Amazon Media Room:

Amazon and JetBlue today announced that they will bring unlimited, on-demand entertainment to airline travel later this year through JetBlue’s free high-speed Fly-Fi broadband internet, the industry’s fastest complimentary inflight internet service, to create an unmatched entertainment experience in the sky.

The collaboration will enable Fly-Fi for Amazon Prime members to instantly access tens of thousands of movies and TV episodes, including exclusive Amazon Original Series such as Transparent, Mozart in the Jungle and Bosch, at no additional cost to their membership. In addition, all JetBlue customers will be able to rent or purchase hundreds of thousands of titles in the Amazon Instant Video store, including new-release movies and day-after TV programming, over the free broadband internet.

“We want to provide the best digital video experience to our customers and we’re excited that, with JetBlue, we will raise the bar in airline entertainment,” said Michael Paull, Vice President of Digital Video at Amazon. “We’re thrilled that Fly-Fi technology will give Prime members and customers unlimited, on-demand access to the full catalog of titles from Amazon’s digital video library while they’re in the sky—without the need to rush to download one more episode or movie before taking off, we’re helping make airline travel more enjoyable.”

Fly-Fi uses satellite technology to give customers internet speeds that feel like what they have at home or work. Amazon and JetBlue worked together to ensure that the inflight entertainment system met the premium experience expected by customers when streaming movies and TV episodes from Amazon. Access to Amazon’s entertainment library will be built into the JetBlue Fly-Fi Hub, giving customers instant access to watch titles from Amazon on their laptops, Fire devices, iPhones, iPads and Android phones and tablets—no pre-flight download needed. JetBlue’s free Fly-Fi broadband internet will be available on all of JetBlue’s Airbus A321 and A320 aircraft this year, and on JetBlue’s Embraer E190 aircraft in 2016.

“Just like at home, customers will be able to access movies and TV shows from Amazon from 35,000 feet in the sky over our super-fast and free Fly-Fi,” said Jamie Perry, Vice President, Brand and Product Development, JetBlue.

Link to the rest at Amazon Media Room

It occurred to PG that some of the companies and individuals that own rights to movies and television shows didn’t realize that granting the right to display video over the internet included showing it at 35,000 feet in an airplane.

Major music association calls Grooveshark’s death an ‘important victory’ for artists

2 May 2015

From Business Insider:

Grooveshark was one of the first online services that let you play almost any song you wanted, on demand, with no restrictions.

It closed down Thursday and it won’t be coming back, according to a statement on the web site.

The site shut down as part of a legal settlement with copyright holders — the artist, publishers, and music labels who owned the rights to a lot of the music on the service.

. . . .

In its early days, a lot of the music on Grooveshark was not licensed. Users were uploading the songs, not the company itself, but that argument has been tested on other services, like Napster, and so far it’s never held legal water.

Link to the rest at Business Insider and thanks to Dennis for the tip.

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