Copyright/Intellectual Property

Cheerleading Uniform Copyright Clash Gets U.S. High Court Review

2 May 2016

From Bloomberg:

The U.S. Supreme Court agreed to use a clash between rival makers of cheerleading outfits to clarify the scope of federal copyright protection for pictures and graphic designs.

The justices on Monday said they will hear an appeal from Star Athletica LLC, which is seeking to fend off a lawsuit by Varsity Brands LLC, the world’s largest cheerleading-apparel company. Varsity says Star copied five proprietary designs.

. . . .

Under federal law, a design can be copyrighted if it is separable from a product’s utilitarian aspects. In the cheerleading dispute, a Cincinnati-based federal appeals court said Varsity’s lines, zigzags and braids were conceptually separate from the uniforms’ functional attributes, making the designs eligible for copyright protection.

Link to the rest at Bloomberg

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‘Star Trek’ Lawsuit: The Debate Over Klingon Language Heats Up

29 April 2016

From The Hollywood Reporter:

When Paramount and CBS ended last year with a lawsuit over a crowdfunded Star Trek fan film titled Axanar, the two studios probably had no idea that they were about to get mired in an esoteric legal debate about the protectability of the Klingon language. But that’s exactly what’s happened, and with the language of digital coding hanging in the background, a California federal judge’s forthcoming decision could hold significance — so large, in fact, that this otherwise run-of-the-mill copyright action has now drawn an amicus brief from a language society that quotes a Klingon proverb translated as “we succeed together in a greater whole.”

To review, after the Star Trek rights holders filed their complaint, the defendant production company demanded particulars of the franchise’s copyrighted elements. In response, Paramount and CBS listed a lot, but what drew most attention was claimed entitlement to the Klingon language. The defendant then reached back to a 19th century Supreme Court opinion for the proposition that Klingon is not copyrightable as a useful system.

On April 11, that drew an entertaining response from the flummoxed plaintiffs.

“This argument is absurd since a language is only useful if it can be used to communicate with people, and there are no Klingons with whom to communicate,” stated a plaintiffs’ brief authored by David Grossman at Loeb & Loeb. “The Klingon language is wholly fictitious, original and copyrightable, and Defendants’ incorporation of that language in their works will be part of the Court’s eventual substantial similarity analysis. Defendants’ use of the Klingon language in their works is simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters.”

Before U.S. District Judge R. Gary Klausner gets a chance to rule on a motion to dismiss, he’s now being asked permission to review a friend-of-the-court brief from the Language Creation Society.

The brief, authored by Marc Randazza, begins with background that the Klingon language was invented in 1984 by Marc Okrand for Star Trek III: The Search for Spock.

“Before that, when actors played Klingons in Star Trek television programs or movies, they simply uttered guttural sounds or spoke in English (Federation Standard),” writes Randazza. “Given that Paramount Pictures commissioned the creation of some of the language, it is understandable that Paramount might feel some sense of ownership over the creation. But, feeling ownership and having ownership are not the same thing. The language has taken on a life of its own. Thousands of people began studying it, building upon it, and using it to communicate among themselves.”

. . . .

Now, with 250,000 copies of a Klingon dictionary said to have been sold, Klingon language certification programs being offered, the Microsoft search engine Bing presenting English-to-Klingon translations, one Swedish couple performing their marriage vows in Klingon, foreign governments providing official statements in Klingon and so on, the Language Creation Society is holding up Klingon as having freed the “bounds of its textual chains.”

Ultimately, the amicus brief comes back to the theory that Klingon is not copyrightable.

“What is a language other than a procedure, process, or system for communication?” asks the society. “What is a language’s vocabulary but a collection of words? The vocabulary and grammar rules of a language provide instructions for a speaker to articulate thoughts and ideas. One cannot disregard grammatical rules and still be intelligible, and creating one’s own vocabulary only worked well for the Bard. Vocabulary and grammar are no more protectable than the bookkeeping system in Baker v. Selden, 101 U.S. 99, 101 (1879).”

Link to the rest at The Hollywood Reporter and thanks to Antares for the tip.

Parts of the amicus brief are written in Klingon.

Prince’s Entire Estate, Including IP Rights at Stake Following his Death

25 April 2016

From The Fashion Law:

Late music icon Prince was known in life as fiercely determined to protect his intellectual property, but how well others might profit from his legacy hinges on how astute he was about arranging for control of his music after death. Prince, 57, who died on Thursday at his home and studio compound in Minnesota, is one of relatively few recording artists believed to have possessed ownership of his master recordings and much of his own music publishing.

“Ownership of his catalog will follow his estate,” veteran Los Angeles-based entertainment lawyer Jay Cooper said on Thursday. “Ownership of the masters will go to whoever inherits it from his estate.” At stake is music featured on more than 30 albums that have sold over 36 million copies in the United State alone since 1978, plus hundreds of songs that are reported to remain unreleased in his vaults.

The key unanswered question about the fate of Prince’s intellectual property is whether the recording artist had a valid will or estate plan in place at the time of his death, lawyers said. Twice divorced with no surviving children, he apparently lacked any immediately identifiable heirs.

“I hope for his sake that he had an estate plan, especially with no heirs,” attorney Lee Phillips, who represented Prince during the singer’s 20s when he made his first blockbuster album, “Purple Rain,” was quoted as telling The Hollywood Reporter.

. . . .

Prince was almost as well known for an unyielding defense of his artistic rights as he was for his music. So assertive was he in maintaining creative control that during a bitter contract battle with Warner Bros. in the 1990s, he famously changed his name to an unpronounceable symbol and scrawled the word “slave” on his forehead in performances.

The dispute centered at least in part on Prince’s desire to release his music more frequently than the label was willing. Prince found it “abhorrent” that he would “use that type of intellectual creativity and pour everything into it and give to people only to have somebody else own it at the end of the day,” said Owen Husney, the star’s first manager, told Reuters TV in an interview.

Link to the rest at The Fashion Law

When Copyright Protections Are Weakened: Canada’s Warning for Australia

22 April 2016

From Publishing Perspectives:

What Copyright Clearance Center’s (CCC) Roy Kaufman characterizes as “a strong push by US technology giants to relax copyright laws” can “water down the rights of thousands of Australians who create stories and education material.” And he points to Canada as an example of the kind of damage Australia is courting.

. . . .

In 2012, Canada amended its Copyright Act to add the word “education” to the list of exceptions that allow the use of material without seeking permission from, or paying, the copyright owner.

Until that year, Canadian educational institutions paid royalties to creators and publishers for copying content, either directly, or through a local collecting society called Access Copyright. This is similar to procedures in Australia, where the education systems pay license fees to an organization called Copyright Agency, allowing use of a wide range of education material.  The Copyright Agency then distributes those fees to the owners of copyright: publishers, authors and artists. In that way, it ensures compensating publishers and education authors, and underwriting production of new works.

. . . .

The effect of the change on Canada’s publishing industry has been direct.

The Access Copyright collecting society’s Executive Director, Roanie Levy, says that educators believe they can now take what used to be paid for under a collective licence and use that content free—and they’re doing that. With an estimated loss of $50 million a year in royalty payments to content producers — plus an even more insidious but hard-to-quantify disincentive to buying books — an important component of Canadian culture is suffering.

. . . .

John Degan, Executive Director of the Writers Union of Canada puts it this way for us: “Going by the 10-percent interpretation” used by educational institutions, “they could take one story out of each book, copy it free, and turn it into a course pack for ‘Canadian Short Stories 101’. Alice Munro wouldn’t have to be told about it, and neither she nor her publisher would see any money for it.”

In other words, Munro would not only cease to receive royalties for copying, but sales of her books would decline, too. For Munro this would be unfortunate, but the consequences of a similar situation for new Canadian authors would be far worse.

. . . .

Access Copyright’s Levy tells us that a systematic use of content without compensation has cost small- to medium-sized publishers 20 percent of their revenues. That means that their profit margins, which already were very slim, are going away.

What’s more, diversity is also being curtailed: the creation of Canadian books by Canadian authors on the country’s history, politics, literature and more is disappearing, paving the way for international publishing firms to saturate Canada with non-Canadian books.

Link to the rest at Publishing Perspectives

PG would be interested on the perspective of Canadian visitors to TPV on this subject. Has the change in Canadian copyright law cost authors money?

In the US, Section § 107 of the Copyright Act sets forth the manner in which individuals or organizations may use portions of a copyrighted work without the consent of the copyright holder under the Fair Use doctrine. Here’s more information on Fair Use if you can’t restrain your enthusiasm for the concept.

The Copyright Clearance Center makes its money by processing copyright permissions to use part or all of copyrighted works. It provides a useful service as a clearing house where someone who wants to use a wide range of copyrighted material can go to pay a fee and legally use the copyrighted material without hunting down the author or publisher. Copyright owners and publishers appoint the CCC as their representative to provide permission to use their copyrighted material. Here’s a link to the CCC.

However the CCC has an interest in broader copyright protection because that means more people and organizations will be paying fees to CCC for use of protected materials. PG is interested to know whether the change in Canadian law has caused problems for authors.


Government gives illustrated publishers July deadline

22 April 2016

From The Bookseller:

The government has given publishers just three months to comply with new legislation which industry figures have warned threatens to decimate illustrated publishing, refusing requests for a longer transition period.

The Publishers Association has said it is “very concerned” by the decision.

The legal changes are extending the length of protection of 2D representations of “design objects” from 25 to 70 years to bring design law into step with copyright law. This means that publishers of books containing mere images of such objects – for example, a photo of a chair – must either pay (in many cases in addition to fees for copyright) to licence design rights or otherwise get permission from the design rights holder; otherwise, the inclusion of the photo is no longer legal for publication. The design object must be over 70 years old to be exempt.

The government has refused to differentiate between the treatment of 2D images in publications from those of 2D design objects themselves: a decision that will dismay illustrated publishers. They now face the unpalatable prospect of shelving publications in progress and pulping stock in order to be compliant with the legislation by 28th July, whenthe amendment will come into force.

The repercussions of this legislation are particlarly far reaching for arts and illustrated publishers whose books may contain hundreds of such images in any given tome. This, according to publishers in the space, could make them too expensive to produce at all.

Link to the rest at The Bookseller

Supreme Court rejects challenge to Google book-scanning project

18 April 2016

From Reuters:

The U.S. Supreme Court on Monday declined to hear a challenge by a group of authors who contend that Google’s massive effort to scan millions of books for an online library violates copyright law.

The Authors Guild and several individual writers have argued that the project, known as Google Books, illegally deprives them of revenue. The high court left in place an October 2015 ruling by the 2nd U.S. Circuit Court of Appeals in New York in favor of Google.

A unanimous three-judge appeals court panel said the case “tests the boundaries of fair use,” but found Google’s practices were ultimately allowed under the law.

. . . .

Several prominent writers, including novelist and poet Margaret Atwood and lyricist and composer Stephen Sondheim, signed on to a friend-of-the-court brief backing the Authors Guild.

The authors sued Google, whose parent company is Alphabet Inc, in 2005, a year after the project was launched. A lower court dismissed the litigation in 2013, prompting the authors’ appeal.

Google argued that the effort would actually boost book sales by making it easier for readers to find works, while introducing them to books they might not otherwise have seen.

The company made digital copies of more than 20 million books, according to court papers. Some publishers agreed to allow Google to copy their works.

Google Books allows users to search the content of the books and displays excerpts that show the relevant search results. Google says in court papers the service “gives readers a dramatically new way to find books of interest” and lets people know where they can buy them. Users cannot read “any substantial portion of any book,” Google said.

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

Food plagiarism. You can’t stop it.

16 April 2016

From The Washington Post:

To taste a Cronut — an actual, legit Cronut — you must be willing to brave the sea of humanity that amasses each morning outside Dominique Ansel Bakery in Manhattan.

You can also go to a Dunkin’ Donuts in pretty much any city and order something that’s kind of like Ansel’s iconic pastry, cut from croissant dough and then deep fried. Or, in Sacramento, you could have a Doissant. In San Francisco, you can scarf down a Cruffin, which is not a doughnut at all, but hey, close enough.

. . . .

But the hottest food trend of the past five years may be copycatting.

Call it food plagiarism.

And the examples go way beyond the Cronut.

Kimchi quesadillas and short-rib tacos were the brilliant pairings that launched Los Angeles’s Roy Choi and the Kogi food trucks — and then set off an echo-boom of Korean-taco knockoffs. New York’s Doughnut Plant claims to have cooked up square jelly doughnuts nearly a decade ago; but now you can have one at Washington’s Astro Doughnuts. Do you drool over the over-the-top cakes with ganache drippings that Australian home baker Katherine Sabbath posts for her nearly 300,000 Instagram followers? Buzz Bakery can sell you an “homage,” and so can plenty of other shops from New York to California.

. . . .

“Once upon a time, a chef produced something, and it slowly made its way around, by people eating there, by word-of-mouth, by traditional media,” says David Sax, author of “The Tastemakers,” which traces the evolution of food crazes. This is how it worked in the days of the Caesar salad and the baked Alaska.

But if cooking has always revolved around adapting and perfecting existing dishes, why does this feel different?

One word: speed. “It’s happening so quickly, it’s impossible to control,” says Sax.

Point a pastry-cream-covered finger at Instagram.

Link to the rest at The Washington Post 

The standard one-word answer to the question, “Can you copyright recipes?”, is “No.”

However, as with so many things legal, the complete answer is more complicated. If you would like additional info on recipes and copyright, PG found Are Recipes Protected by Copyright Law? He quickly scanned the post and it looked informative.

Friendly Reminder: A blog post is not legal advice. You obtain legal advice by hiring a lawyer.

Stairway to (copyright) Heaven

13 April 2016

From The Washington Post Volokh Conspiracy Blog:

The “Stairway to Heaven” copyright lawsuit, about which I blogged several years ago, is back, this time in federal court in California, and it’s getting a fair bit of attention — possibly deserved, possibly not.

. . . .

In a sensible legal universe, perhaps, this is the sort of case that could be disposed of in a couple of days. There’s really only a single question: Did the author(s) of “Stairway” copy a substantial amount of copyright-protected material from “Taurus” and incorporate it into their song? In a sensible legal universe, perhaps, you’d gather a jury together, play a recording of “Taurus” and one of “Stairway to Heaven,” repeat several times, and then ask: Do you think that the author(s) of “Stairway” copied a substantial amount of copyright-protected material from “Taurus” and incorporated it into their song? Yes or no?

. . . .

But that is not, alas, our legal universe. In our legal universe, the process of answering that simple question will take years, cost many hundreds of thousands of dollars and involve any number of dense and complex 20-page (single-spaced) judicial opinions.

. . . .

The relevant facts take only two pages; the rest is all legal complexification. There are the competing experts’ reports to consider — three separate reports submitted by plaintiffs, two by the defendants — comparing the similarities and differences between the two songs, followed by a veritable algal bloom of legal questions: Had plaintiff abandoned his copyright? Was the claim barred by the equitable doctrine of “laches” (unreasonable delay)? Had plaintiff complied with the relevant requirements to which he was subject in 1968 for obtaining copyright in “Taurus”? Did plaintiff own the copyright in “Taurus”? Was it a “work made for hire”? Were the two works “strikingly similar,” or were they merely “substantially similar” — under both the “intrinsic” and the “extrinsic” similarity tests? Was there any direct evidence that the defendants had ever actually heard the song? Any circumstantial evidence? Under which theory — the “wide dissemination” theory, or the “chain of events” theory? …

Some of the complexity, to be sure, is probably unavoidable and inherent in the question being asked. Copyright law does (and should) require the plaintiff to establish more than just “the songs sound alike.” He has to establish that the authors of “Stairway” actually copied from his work — not just that there are similarities between the two songs, but that the similarities are due to the fact that the defendant “lifted” material from “Taurus” and put it into “Stairway” (and not due, say, to mere coincidence, or to the fact that both songwriters were drawing from the same source).

That is going to make things complicated, because it requires an inquiry into the circumstances surrounding the creation of “Stairway” — where were you, how did it come to you, who was present, what was going through your head …

. . . .

And it’s complicated, too, because the plaintiff not only has to establish that the defendant copied from his work, but also that the material that was copied was protected by copyright. Much of “Taurus” — much of every song — isn’t protected by copyright at all, because every song contains a great deal that is not “original” to the song’s author. “Taurus” begins in the key of A minor — but that’s not part of Randy Wolfe’s copyright, of course. So that similarity between “Taurus” and “Stairway” — the fact that they both begin in A minor — is completely irrelevant to the infringement analysis and has to be “filtered out”; even if Led Zeppelin had copied that from “Taurus,” it wouldn’t matter, because it’s not protected by copyright. Same for “a descending bass line” — not protected.

Link to the rest at The Washington Post

PG has already had a post about this, but thought the legal explanations (more at the OP) would be helpful to those who are not copyright geeks.

Media companies’ concern

13 April 2016

Media companies’ concern with protecting copyright does not always include protecting authors. Film studios, recording companies, software firms, and book publishers cite the need to protect creators when they lobby against digital piracy, but rarely say that they are simultaneously demanding that those creators surrender copyright in an unprecedented fashion.

Anecdotes about this practice are legion. When I was recently asked to write a television script, the studio insisted that I sign four copies of an affidavit giving it all rights to my writing “throughout the Universe in perpetuity.” I telephoned a studio lawyer to see if I could keep a few moons of Jupiter. The lawyer became angry and pointed to the section of the affidavit in which I recognized that the studio “becomes the Author of the Writer’s Work. We mean it,” the lawyer said.

Charles Mann

Led Zeppelin’s Stairway to Heaven may be partly stolen, judge says

12 April 2016

From The Guardian:

Led Zeppelin’s lead singer Robert Plant and guitarist Jimmy Page must face a US jury trial over whether they stole opening chords for their 1971 classic Stairway to Heaven.

In a decision on Friday, US district judge Gary Klausner in Los Angeles said the song and the 1967 instrumental Taurus by the band Spirit were similar enough to let a jury decide whether Plant and Page were liable for copyright infringement.

. . . .

Skidmore said Page may have been inspired to write Stairway to Heaven for Led Zeppelin after hearing Spirit perform Taurus while the bands toured together in 1968 and 1969, but that Wolfe never got credit.

The defendants said Wolfe was a songwriter-for-hire who had no copyright claim, and that the chord progressions were so clichéd that they did not deserve copyright protection.

But the judge said a jury could find “substantial” similarity between the first two minutes of Stairway to Heaven and Taurus, which he called “arguably the most recognizable and important segments” of the songs.

“While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure,” Klausner wrote. “What remains is a subjective assessment of the ‘concept and feel’ of two works … a task no more suitable for a judge than for a jury.”

Link to the rest at The Guardian


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