Copyright/Intellectual Property

Judge Clears ‘Gone Girl’ Creators in Copyright Dispute

25 May 2018

From Courthouse News Service:

A federal judge dismissed an author’s claim that the popular thriller novel and movie “Gone Girl” is based on her copyrighted screenplay, finding that the stories are considerably different.

“Overall, no ordinary observer could conclude that [Out of the Blue] and Gone Girl are substantially similar. Their common elements are standard in thrillers and at the level of particular expression they tell very ‘different stories,’” U.S. District Judge John Robert Blakey wrote in a 33-page opinion issued Monday.

Author Leslie Weller filed a lawsuit in December against “Gone Girl” author Gillian Flynn, claiming she gave a copy of her screenplay “Out of the Blue” to a script consultant linked to Flynn, who then copied several elements of it.

Weller argued both stories focus on the central theme of “how well one person can really know another person.”

. . . .

Judge Blakely wrote that Weller failed to “connect the dots.”

“She describes a chain of professional relationships—most of which have no relation to Gone Girl—and invites speculation that some unidentified intermediary, for some reason, showed Flynn—who was by then two years into her work on the novel—an unproduced screenplay by a writer whom [her agency] did not represent,” the ruling states.

The judge also found that “numerous and significant differences” between the stories “weigh against finding substantial similarity.”

Link to the rest at Courthouse News Service

Here’s a copy of the court’s decision:



How Superheroes Made Movie Stars Expendable

22 May 2018

From The New Yorker:

Sony, which from 2002 to 2012 had generally been one of the top earners at the box office, was failing as a studio. Under Pascal’s leadership, Sony released a mix of tentpole films—the latest James Bonds, “Da Vinci Code” sequels—and star-driven vehicles often featuring Will Smith or Adam Sandler. (“Will and Adam bought our houses,” Sony execs liked to say.) Sprinkled among these were mid-budget, low-concept movies aimed at adults. Pascal had taken pride in Sony’s reputation as a “relationship studio,” built on its connections with talent. She was literate and smart, and alive to what makes a story click. Sony owned the rights to Spider-Man, and Pascal made intelligent use of them—her choices for director (Sam Raimi, of “Evil Dead” fame) and star (dewy-eyed Tobey Maguire) were unexpected, and together they made a movie that honored fans and non-fans alike. (“Spider-Man 2” was good, too.)

In the long run, it didn’t matter. Sony did not own the intellectual property, or “I.P.,” necessary to build out Spider-Man into a “cinematic universe”—that is, a fictional world that transfers from picture to picture, so that, instead of a single story line with a new installment every few years, a studio can release two or three “quasi-sequels,” as one Marvel executive has put it, in the span of a single year. Marvel pioneered the cinematic universe, hatching a plan in 2005 that it launched with the release of “Iron Man,” three years later. Without the requisite I.P., Sony couldn’t compete. “I only have the spider universe not the marvel universe,” Pascal explained to a colleague, in a 2014 e-mail. (The studio had had a chance to buy nearly all Marvel’s big characters, on the cheap, in the late nineties, but declined.) In another e-mail, Pascal suggested that she was trying to create an “un-marvel marvel world that is rooted in humanity.”

As Sony faltered, its rival, Disney, was enjoying an embarrassment of I.P. riches. First, it began remaking its animated classics as live-action features; then, in 2009, Disney bought Marvel, for four billion dollars. In 2012, it acquired Lucasfilm, the parent company of “Star Wars,” for another four billion. By 2015, Disney was releasing one new movie from the “Star Wars” universe and two or more movies from the Marvel universe every year.

Located nowhere in actual history or geography (or, maybe, human experience), a cinematic universe need not be limited by cultural specificity or nuance. What plays in Sioux City plays in Bayonne will play in Chongqing. The rise of the cinematic universe is inseparable from the rise of a truly global cinematic marketplace, dominated by China. In “The Big Picture: The Fight for the Future of the Movies” (Houghton Mifflin Harcourt), the Wall Street Journalreporter Ben Fritz shares a startling fact: in 2005, the highest-grossing film in China was “Harry Potter and the Goblet of Fire,” which took in just under twelve million dollars. In 2017, a “Fast and the Furious” sequel made almost four hundred million there.

. . . .

Until blockbusters arrived—starting in 1975, with Steven Spielberg’s “Jaws,” in its time the most commercially successful film in history—Hollywood released movies gradually, one set of theatres after another. In the “run-zone clearance system,” a movie would begin with a heavily publicized first run in downtown theatres in major cities, continue on to smaller houses in less affluent or less fashionable parts of the city, and then move out to the suburbs, to smaller cities and towns, and, finally, to rural communities. A movie that was disliked by its first wave of viewers might not continue through the system, and the urban sophisticates who made the initial decision to see it were heavily influenced by the critics.

In the nineteen-twenties, the producer Irving Thalberg recognized that a pattern of distribution implies a pattern of taste-making. From his position, first at Universal and then at M-G-M, he turned Hollywood in the direction of prestige pictures—movies that “emphasized glamour, grace, and beauty,” as one critic put it. As much as three-quarters of M-G-M’s productions were A-class features feeding into the most deluxe of the downtown movie palaces, a business practice that was fortified, year after year in that decade, by an urban industrial boom. A version of this approach to distribution survived for much of the twentieth century—as late as the mid-seventies, a movie could take six months, or even a year, to finish its theatrical run. By then, however, suburbanization had transformed the country. The studios were stuck with a release pattern designed to flatter a social landscape that, by and large, no longer existed. “Jaws” was a masterpiece by a wunderkind director, but it also proved out a new business model: a gimmicky idea, bankable stars, and aggressive television ad campaigns, all of it designed to trigger audience anticipation and drive a massive Friday-night opening across thousands of screens—critics and snobs be damned.

It did not take Hollywood long to see the commercial possibilities, and the blockbuster came to dominate the movie industry.

. . . .

For most of Hollywood history, the movie business has needed a hostage buyer, a customer with little choice but to purchase the product. First, this was the theatre chains, which the studios owned, or controlled, until 1948, when the Supreme Court forced the studios to sell them on antitrust grounds. In the eighties and nineties, video stores partly filled the role. But, increasingly, the hostage buyer is us.

Today, the major franchises are commercially invulnerable because they offer up proprietary universes that their legions of fans are desperate to reënter on almost any terms. These reliable sources of profit are now Hollywood’s financial bedrock. The business model began to take shape, gradually, in the eighties; it solidified a decade ago, when a writer’s strike recalibrated Hollywood’s tolerance for risk. (The global financial crisis played a role as well.) At the same time, digital distribution was on the rise; Netflix, which launched its streaming service early in 2007, after years as a mail-order company, began eating into DVD sales. As the major studios faced the loss of a large and predictable revenue stream, they trimmed their release schedules and focussed more of their efforts on the global mega-brands: Marvel, DC, “Harry Potter,” “The Fast and the Furious,” “Star Wars.” The movie business transitioned from a system dominated by a handful of larger-than-life stars to one defined by I.P.

. . . .

The preëminence, during the past ten years, of the superhero movie has been accompanied by the loss of the actor as hero, or heroic type. “According to Marvel’s philosophy,” Ben Fritz writes, “the characters, not the actors, were the stars, and pretty much everyone was expendable.” There was no separating Powell from Nick Charles, or Humphrey Bogart from Sam Spade. Is there any connecting Batman to—fill in the blank? The quality of film acting has never been higher, and there is still a craft in scriptwriting and directing that makes one regularly bow in awe. But a minimal standard of human relatability is not being met, on a routine basis, in the medium’s most dominant genre. People who are nothing like us rescuing a world that is nothing like ours is not a recipe for artistic renewal.

Link to the rest at The New Yorker

HBO Wins Copyright Infringement Case Over Graffiti Artist Relying On The De Minimis Copyright Exception

22 May 2018

From Above the Law:

I talk a lot about fair use since it is, without question, the most important limitation and exception in U.S. copyright law, representing a powerful user right. What often doesn’t get enough attention, though, is what is known as the de minimis exception where a court need not go through a full fair use analysis because the amount of the material copied is so small.

HBO recently won a case, Gayle v. Home Box Office, Inc., involving its TV series, Vinyl, a single-season series created by Mick Jagger and Martin Scorsese about a record executive in the 1970s. One episode of the show included a scene of a woman walking down a street in New York City where she passes by a dumpster tagged with graffiti that says “art we all.” The graffiti artist, Itoffee R. Gayle, claims that this depiction violated his copyright and trademark rights. According to his complaint, HBO never tried to contact him or license the graffiti. Of course, as the court agreed, HBO didn’t actually need to try to contact Gayle and no license fee was needed because not all copying is unlawful.

The District Court for the Southern District of New York points out that Gayle must prove unauthorized copying of the work and that the infringing work is substantially similar to his, which requires that the amount taken was more than de minimis. The court notes, “In the copyright arena, de minimis can ‘mean what it means in most legal contexts: a technical violation of a right so trivial that the law will not impose legal consequences,’ or it can mean ‘that copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.” In other words, de minimis means just what you think it means.

Looking at the use of the graffiti art in the episode, the court notes that Gayle’s claims “are premised on a fleeting shot of barely visible graffiti painted on what appears to be a dumpster in the background of a single scene” and that the art appears for no more than two to three seconds. Two to three seconds. Of an entire episode. Yup, sounds pretty de minimis to me. The court goes on, noting that the graffiti is not pictured by itself or close-up, plays no role in the plot, and “is hard enough to notice when the video is paused at the critical moment. It is next to impossible to notice when viewing the episode in real time.”

. . . .

While Gayle attempts to argue that HBO intentionally picked this particular piece of graffiti art to use in the background, the court concludes, “HBO’s motive in depicting the graffiti is irrelevant to the de minimis inquiry.” The copying is not actionable, because its use was so small, even if there was a thematic reason for it. For similar reasons, the court also rejects Gayle’s trademark claims.

Link to the rest at Above the Law

PG notes there is a distinction between de minimus use and Fair Use although, logically, they are related.

17 U.S.C. § 107 contains a list of factors which will determine whether the reproduction of a work protected by copyright is or is not fair use. Fair use is an exception to the protections to which the author or creator of a work under copyright law.

In determining whether the use made of a work in any particular case is a fair use under § 107,  the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use.  Some of those exceptions are:

  • quotation of excerpts in a review for a scholarly or technical work;
  • for illustration of the author’s observations;
  • use in a parody;
  • use in a news report;
  • reproduction by a library to replace part of a damaged copy; and
  • reproduction of a work in legislative or judicial proceedings or reports.

Elsewhere, the Register of Copyrights cautions, “Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.”

De minimis is a Latin expression meaning “about minimal things”, normally in the locutions de minimis non curat praetor (“The praetor does not concern himself with trifles”) or de minimis non curat lex (“The law does not concern itself with trifles”) a legal doctrine by which a court refuses to consider trifling matters. (Wikipedia, De minimis)

De minimis analysis has been used in a variety of contexts having no relationship to intellectual property. Factor 3 under the Fair Use exception, “the amount and substantiality of the portion used,” would seem to mean something quite similar to de minimis, but courts generally conduct an analysis under all four factors, so a reasonable de minimis defense may be subsumed in considerations of the other three factors.

If PG were king for a day, some time after outlawing war , he would increase the importance of de minimis considerations in the copyright law. Copying a single paragraph from a 300-page book wouldn’t generate a nasty letter from the publisher’s lawyer because it would clearly be de minimis.

For those not cursed with an education in the law, the idea of de minimis exceptions to copyright protection is not difficult to understand and apply. You can pick a leaf from a large tree without harming the tree. The author owns rights to the work he/she creates, but that doesn’t prevent others from using small portions of that work in their own creations.

Congress’ Latest Move To Extend Copyright Protection Is Misguided

21 May 2018

From Wired:

Almost exactly 20 years ago, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing copyrights by 20 years. The Act was the 11th extension in the prior 40 years, timed perfectly to assure that certain famous works, including Mickey Mouse, would not pass into the public domain.

Immediately after the law came into force, a digital publisher of public domain works, Eric Eldred, filed a lawsuit challenging the act. The Constitution gives Congress the power to secure copyrights “for limited times,” for the express purpose of “promot[ing] Progress.” Extending the copyright of an existing work, Eldred argued, could not promote anything — the work already exists. And repeated extensions of existing terms cannot be what the framers meant by “limited times.”

The Supreme Court agreed to hear the challenge. I was lead counsel for the plaintiff. And in addition to our brief, a scad of creators who build upon the public domain, along with librarians, archivists, and economists, filed briefs in support of Eldred; Nobel Prize winner Milton Friedman agreed to sign the economists’ brief only if the words “no brainer” were included.

Yet the court rejected our challenge to the law. Justice Ruth Bader Ginsburg was not convinced that Congress was addicted to term extensions. The most recent extension, the Court remarked, simply harmonized the term internationally. After the 1998 extension, there was no reason, the Court believed, to think that Congress would need to extend terms anymore. After all, with a term of 95 years for work created before 1976, and life of the author plus 70 years for work beginning in 1976, how much more time could possibly be needed?

Twenty years later, the fight for term extension has begun anew. Buried in an otherwise harmless act, passed by the House and now being considered in the Senate, this new bill purports to create a new digital performance right—basically the right to control copies of recordings on any digital platform (ever hear of the internet?)—for musical recordings made before 1972. These recordings would now have a new right, protected until 2067, which, for some, means a total term of protection of 144 years. The beneficiaries of this monopoly need do nothing to get the benefit of this gift. They don’t have to make the work available. Nor do they have to register their claims in advance.

. . . .

The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it’s not just a gift through cash; it’s a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.

Yet there is no registry of these owners anywhere.

Link to the rest at Wired

‘Fix Our Marketplace,’ Canadian Publishers Tell Parliament in Copyright Act Hearings

18 May 2018

From Publishing Perspectives:

In our earlier piece on Canada’s Standing Committee on Industry, Science, and Technology hearings about the country’s 2012 Copyright Modernization Act, we looked at the comments of Hugo Setzer of the International Publishers Association (IPA).

. . . .

To recap this long-running hot spot in world copyright issues, the problems with the Copyright Modernization Act—as examined in a Toronto conference in November—have to do with the scope of a “fair dealing” exception (also called “fair use”) in education settings.

Canadian universities have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some settings, instructors have allowed themselves to copy and distribute to students up to 10 percent of a book without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.

Canadian publishers estimate that they’re losing more than $50 million annually in copyright revenue as a result of this “fair dealing” situation. The crisis has set the publishing and educational communities at odds with each other in a series of increasingly acrimonious debates and court actions around Access Copyright, the federally mandated collection agency for copyright revenue.

. . . .

“We’ve been damaged by the Copyright Modernization Act,” Rollans told the hearing. “We’re not asking you to turn back the clock. We’re asking you now to unleash the unique contributions to Canada that come from our sector. It won’t happen if you don’t fix our marketplace.

“That means, first, clarify fair dealing for education by ending unfair copying. Adding education as a purpose for fair dealing crashed an inexpensive, smoothly functioning system,” based in Access Copyright’s process of levying and collecting low per-student fees (roughly $26) each year for the use of copyrighted material.
“Second, promote a return to collective licensing in the education sector. It works; it’s simple.
“Third, increase statutory damages to discourage systematic infringement.
“Fourth, ensure that Canada meets its international treaty obligations.
“And fifth, promote the effective operations of the Copyright Board.”

. . . .

John Degen, executive director of the Writers’ Union, explained to the hearing that he spoke as the representative of 2,100 members of the union and for the International Authors Forum in the UK, which he said represents some 700,000 writers and visual artists in many parts of the world. Like other members of the international publishing industry, he said, “The world’s authors are also watching this process with great interest and considerable anxiety.”

A part of Degen’s mission was to bring the ground-level reality to the hearing: “Authors are regular guests in classrooms across the country,” he said, “and many have personally witnessed beleaguered teachers photocopying an improvised, free ‘class set’ of materials, sometimes entire books. This is happening.”

Indeed, in compensation terms, “Fully 80 percent of our licensing income has simply disappeared because schools now copy for free what they used to pay for” since the implementation of the Copyright Modernization Act. “These are facts that may be ignored by some, but they’re indisputable.”

Degen told the hearing, “Each year in Canada more than 600 million pages of published work are copied for use in educational course packs, both print and digital, and the education sector is essentially claiming all of that work for free. That is the real world result of education’s copying policies.”

Link to the rest at Publishing Perspectives

‘Zorro’ Licensor, in Role Reversal, Faces Trial for Copyright Infringement

18 May 2018

From The Hollywood Reporter:

For nearly 70 years, Zorro Productions Inc. has controlled rights to Zorro thanks to an intellectual property assignment from author Johnston McCulley, who wrote the first story about the masked avenger in 1919. First run by literary agent Mitchell Gertz, and later by his son John Gertz, ZPI has spent decades licensing Zorro to Hollywood studios making movies of the popular character who frees oppressed masses from tyrannical villains.

However, the Zorro licensor may have lost its grip. Thanks to a court decision on Friday that represents the latest in a two-decades-long feud between two men, ZPI appears headed to trial as a copyright defendant for allegedly infringing a Zorro work.

The story begins in 1996.

That year, playwright Robert Cabell published a musical titled Z – The Musical of Zorro about the masked avenger leading a double life. The musical was based on McCulley’s first story as well as a 1920 film starring Douglas Fairbanks. Looking to get his musical off the ground, Cabell provided his script to John Gertz.

A short time after Cabell reached out to Gertz, the playwright had a change of heart. He did the math and realized that a story published in 1919 was no longer under copyright protection.

In a 1997 letter, Cabell wrote Gertz, “Though I appreciate your past support it seems in actuality, the only thing you are able to license to me is the Zorro logo, which I have absolutely no interest in. … You must understand that I will continue this project under the rights of public domain.”

. . . .

“I understand clearly that you have decided that my company’s rights are unnecessary for your project, and that you intend to proceed without our rights,” responded Gertz. “[S]ince you seem determined to proceed onwards, I will simply inform you of the obvious; any attempt to produce your play before a paying audience will result in an immediate lawsuit.”

What followed was a continued war of words. According to Cabell, Gertz interfered with various productions of his musical around the world including an early 2000s Broadway production that never materialized due to threats. Besides copyrights, Gertz also used trademarks to assert authority. That led Cabell to petition for cancellation of registered trademarks.

In 2004, the situation appeared to cool as Sony Pictures was set to release The Legend of Zorro, starring Antonio Banderas. As part of a “walk-away agreement” negotiated by Sony, Cabell withdrew his cancellation petition, and ZPI agreed not to challenge Cabell’s works.

. . . .

Around that time, ZPI entered into a license agreement with author Isabelle Allende for a book that focused on a younger version of the character titled Zorro, A Novel. Then, in 2005, ZPI authorized a new musical by a London-based company. It premiered in 2008 and was performed internationally.

As both Cabell and Gertz had stakes in Zorro musicals, they would again cross swords, especially when a German producer in 2013 became interested in mounting Cabell’s version.

Eventually, this would lead to a lawsuit from Cabell challenging ZPI’s authority over Zorro. Cabell not only looked for a declaration that his own musical didn’t infringe any copyrights and that ZPI’s trademarks were registered fraudulently, he contended that ZPI used material from his script in both Allende’s book and the follow-up musical.

. . . .

“In his original motion, Plaintiff argued that he is entitled to summary judgment of non-infringement because his musical is just a composition of elements from the public domain, it does not infringe,” writes the judge. “Defendants did not respond to these arguments. The Ninth Circuit has held that a plaintiff has ‘abandoned … claims by not raising them in opposition to [the defendant’s] motion for summary judgment.’ Accordingly, the Court deems Defendants to have abandoned the position that Plaintiff does not infringe its copyrights on the merits.”

. . . .

“Where, as here, there is no direct evidence of copying, copying can be proven circumstantially by showing a defendant had ‘access’ to a plaintiff’s copyrighted material and that the two works at issue are ‘substantially similar.'”

The judge doesn’t see access or striking similarity when it comes to the Allende novel and throws out a copyright claim directed there, accordingly.

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

The Right of Publicity―A Misunderstood, Misshapen, Bloated Monster

16 May 2018

From The Volokh Conspiracy:

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant’s advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

. . . .

The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people’s images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.

The right has led to liability for comic book authors who name characters after their favorite hockey players, and a payout by the nightly news for showing a fifteen-second clip of a performer at a local fair. The right has blocked television and movie producers from making or licensing derivative works based on their copyrighted works, such as action figures, movie posters, and robots that remind people of fictional characters. The right can stop businesses from accurately reporting that celebrities are wearing their clothes or handbags or jewelry, or eating in their restaurants.

Perhaps worst of all, under many state laws, the right of publicity is treated as a fully transferable property right, meaning that your own name, likeness, and voice could be sold, given away, or taken by someone else―forever.

. . . .

The NCAA has claimed that student-athletes assigned (gave) their rights over their names and likenesses to the NCAA in perpetuity. Reality television producers have asked contestants to sign over their rights to their names and likenesses and life stories to the producers or production companies as a condition for participation on the shows.

Both Facebook and Twitter have claimed to be able to use your name and picture to endorse and advertise products, and even on products, like trading cards.

Link to the rest at The Volokh Conspiracy

Here’s a link to The Right of Publicity: Privacy Reimagined for a Public World by law professor Jennifer Rothman

The Royal Wedding and Intellectual Property Rights

15 May 2018

From IPKat:

This coming Saturday – 19th May – the wedding of Prince Harry and Ms. Meghan Markle takes place at St George’s Chapel, in Windsor. In the run up to the royal wedding, there’s really only one question on all our minds of course, what about the Royal IP?! After the Lord Chamberlain’s Office announced that the rules of use have been “temporarily relaxed”, Dr Janice Denoncourt (Senior Lecturer, Nottingham Law School) kindly provides us with the full details:

Global super brand Queen Elizabeth II and members of her family are the subject of worldwide fascination.  The forthcoming marriage of Prince Harry and Ms Meghan Markle to be celebrated on 29 May puts intellectual property (IP), branding and image rights in the spotlight.  Love them or loathe them, the British Royal Family is a unique selling point of the UK.  Business analysts predict a worldwide TV audience of 1 billion, while royalty devotees will inject millions of pounds into the U.K.’s economy. The wedding of Prince Harry, the fifth in line to the throne, presents an array of commercial opportunities in terms of souvenirs, memorabilia, marketing and advertising.  It’s not surprising that many businesses and organisations will want to associate their goods and services with the happy historic event for commercial purposes in the UK and beyond.

However, like other significant events such as the Invictus Games, Royal Ascot and Wimbledon, special legal rules regarding the use of IP and image rights apply. In other words, super brand management is on the agenda. The Lord Chamberlain, the Earl Peel, is the most senior officer of the Royal Household.  His office produces definitive guidelines on the use of the Royal Arms, Names, Images, Royal Devices, Emblems and Titles and of photographs, portraits, engravings, effigies and busts of The Queen and Members of the Royal Family. Normally, using Royal names or Royal residences on products is unlawful if the use of the name suggests the goods have some connection with or are supplied to a Member of the Royal Family. These rules are only relaxed on occasional events of national importance. Although established souvenir firms will have ‘Operation Royal Wedding 2018’ underway, smaller, less IP-aware businesses will be relieved to learn that the Royal Wedding is indeed nationally important. They can relax, but must remain on ‘best commercial behaviour’ so to speak.

The Lord Chamberlain’s Office, announced that:

“In line with previous practice for Royal weddings, Prince Harry has been pleased to approve that the rules governing the commercial use of Royal Photographs and Insignia may be temporarily relaxed to allow their use on souvenirs commemorating the Engagement and Marriage of HRH Prince Henry of Wales and Ms Meghan Markle.” 

. . . .

Beware Royal IP Etiquette!
It is not quite a free for all. To qualify, souvenirs must be in ‘good taste’; free from any form of advertisement; and carry no implication of Royal custom or approval – otherwise such use might infringe Prince Harry and Ms Markle’s IP and image rights. There are specific restrictions on certain types of souvenir[s].

. . . .

Kensington Palace owns the copyright in the official engagement photographs. Alexi Lubomirski, the same man who shot their engagement, has been appointed the official Royal Wedding photographer. Permission to use Engagement and Royal Wedding images must be cleared by the Royal Household before use and will be authorised only for news editorial purposes and NOT for use on souvenirs, or memorabilia and the like.

Link to the rest at IPKat

Invisible Labor and Digital Utopias

11 May 2018

From Hacking Education:

This is the transcript of the talk I gave this afternoon at a CUNY event on “The Labor of Open”

. . . .

As I’ve thought about what I might say, I will admit, I had to do a lot of reflection about what my relationship is to “open.” Because it’s changed a lot in the last few years.

I don’t want to make this talk about me. That would be profoundly unhelpful and presumptuous. But I also don’t want to make that word “open” do work politically (or professionally) that it hasn’t done for me personally (politically and professionally). And while I understand that for many people “open” is a key piece of an imagined digital utopia, it hasn’t been always so sunny for me.

. . . .

At the beginning of the year, I made a bunch of changes to my websites – that is, my personal website and Hack Education, the publication I created almost a decade ago. I changed the logo. I updated my author photo. And I got rid of the Creative Commons licensing at the footer of each article.

My websites have always been CC-licensed – although admittedly, I’ve used different versions over the years, mostly going back and forth with whether or not I want that non-commercial feature. I guess, in some people’s eyes, that means my work was never really, truly “open.”

I thought a lot about this change, about ditching the CC licensing – this is my work, after all, and as such, it’s deeply intertwined with my identity. It’s also my experience – my lived experience – as a woman who writes online about technology.

Five years ago, I removed comments from my website. Lots of folks were not pleased. But dealing with comments was a kind of labor that I was no longer willing to do.

’d written a couple of articles that had ended up on the front page of Reddit and Hacker News – articles critical of Codecademy and Khan Academy, in particular – and my website was flooded with comments signed by Jack the Ripper and the like, chastising me, threatening me. “Just delete those comments,” some people told me. “Flag them as spam.” But see, that’s still work. Not very rewarding work. Emotionally exhausting work. Seeing an email appear in my inbox notifying me that I had a new comment on my site made me feel sick. So I removed comments altogether – that’s the beauty of running your own website. I felt then and I feel now that I have no obligation to host others’ ideas there, particularly when they’re hateful and violent, but even if they’re purportedly helpful – “there’s a comma splice in your last sentence.” Or “It’s a little off topic but anyone looking for a job should check out this website that is currently hiring people to work at home for $83 an hour.” You know. Helpful comments.

. . . .

But because I’ve removed the Creative Commons licensing, you now do have to do one thing before you take an essay of mine and post it elsewhere: you have to ask my permission.

As a woman who writes online about technology, I have grown far too tired of “permission-less-ness.” Because “open” doesn’t just mean using my work for free without asking. It actually often means demanding I do more work – justify my decisions, respond to accusations, and constantly rethink how and where I want to be and am able to be and work on the Internet.

So I’ve been thinking a lot, as I said, about “permissions” and “openness.” I have increasingly come to wonder if “permission-less-ness” as many in “open” movements have theorized this, is built on some unexamined exploitation and extraction of labor – on invisible work, on unvalued work. Whose digital utopia does “openness” represent?

. . . .

When we think about “open” and labor, who do we imagine doing the work? What is the work we imagine being done? Who pays? Who benefits? (And how?)

I talk a lot in my writing about “the history of the future” – that is, the ways in which we have, historically, imagined the future, the stories we have told about the future, and perhaps even the ways in which those narratives shape the direction the present and the future take.

I’d like to turn to some of of these depictions of the future, a series of postcards that were created in 1899 in France to celebrate the turn of the century and to imagine what the world might be like in the year 2000.

Link to the rest at Hacking Education

Did Youtube Phenomenon Poppy Steal Her Style From Another Star?

11 May 2018

From Wired:

A prominent YouTube personality who has garnered tens of millions of views is being sued by another star for allegedly stealing her persona. The question now is whether the case has any merit under copyright law.

In April, YouTuber and musician Mars Argo, whose real name is Brittany Sheets, filed a lawsuit in California against another star, Poppy (Moriah Rose Pereira), and her co-collaborator, Titanic Sinclair (Corey Mixter). The complaint, embedded below, accuses Mixter of “calculatedly” transforming Pereira into a “Mars Argo knockoff.” Sheets is also seeking domestic violence damages from Mixter, accusing him of “severe emotional and psychological abuse and manipulation.” The pair were in a romantic relationship until early 2014; after they split, Mixter began working with Pereira, who would soon become famous as Poppy.

. . . .

From 2008 to 2014, Mixter and Sheets dated and collaborated on the Mars Argo project, which gained a cult following on YouTube and other social platforms. They were best known for their vlog series Computer Show, which mostly parodied American internet culture. In early 2014, after the pair had broken up, they published one of their most successful videos, “Delete Your Facebook,” which garnered over 1.8 million views. In November of that same year, Poppy released her first video “Poppy Eats Cotton Candy.”

Mars Argo fans immediately noticed similarities between the newcomer and Argo, and a conspiracy theory began to brew online. Poppy’s mysterious, deadpan videos mimicked the same ironic, dark humor as Mars Argo’s. The overlap wasn’t just tonal: the two looked alike.

. . . .

Fans soon began to speculate that Poppy was, perhaps, an extension of the Mars project or that Poppy simply was Mars. Meanwhile, Sheets deleted most of her social media posts, and largely disappeared from the internet. In the lawsuit, Sheets says she did so in order to protect herself from Mixter’s threats and abuse.

In the three years since Sheets went dark, Poppy has risen to fame.

. . . .

But can Sheets successfully sue Poppy for stealing her online persona?

. . . .

Poppy goes on to accuse Sheets of “collaborating and maintaining an ongoing relationship with the exact man who took advantage of me when I was young and vulnerable.” That man is presumably Joshua Michael Moran, also known as Mosh Joran, a musician who is friendly with Sheets. In addition to her statement, Poppy also tweeted two restraining orders she and Mixter allegedly filed against Moran, as well as graphic surveillance camera footage from 2015 that purports to show Moran assaulting Mixter several days before those orders were filed.

. . . .

Sheets’ domestic violence allegations are serious and shouldn’t be viewed lightly. But her copyright and “right to publicity” claims against Mixter and Pereira are worth exploring, especially in an age where YouTubers constantly mimic each other’s style and content. Were her case to win over a jury (the complaint requests a jury trial), it could set stricter guidelines for YouTubers and other entertainers going forward.

“This is a fairly unique case of copyright infringement and looks to stretch the bounds over what is protected under a copyright registration,” says Michael Lee, a partner at the law firm Morrison/Lee, which specializes in intellectual property related to YouTube and videogames. “This will be a case to closely watch as it could set some important precedent if it goes to trial.”

. . . .

In her complaint, Sheets outlines a dizzying number of instances where Poppy appears to have mimicked or outright stolen Mars Argo’s aesthetic, makeup, hair, way of speaking, and clothing. Sheets even accuses Poppy of wearing the same exact jacket as Mars Argo. Her lawyers also point out that Poppy uploaded a video with the same name as one of Mars Argo’s: “Delete Your Facebook.” But legal experts say many of Sheets’ copyright accusations are fuzzy, and include generic ideas and behaviors, like filming a video while sitting on a particular style of chair, wearing bunny ears, and sitting in a white bathtub with a pink background.

“You’ll notice the complaint is very vague when it comes to what works actually infringe—there’s just a lot of hand-waving about global similarities between the two projects,” says Daniel Nazer, a staff attorney on the Electronic Frontier Foundation’s intellectual property team.

. . . .

“Copyright protection does extend to well-defined characters, and the use of those characters can form the basis of a claim for unauthorized derivative works. Mars Argo, based on what I’ve seen, isn’t a fully developed character in the sense copyright law requires,” says Aaron Perzanowski, a law professor at Case Western Reserve University.

. . . .

Neill specifically references Anderson v. Stallone, a California copyright lawsuit where the author of the script for Rocky IV, sued Sylvester Stallone and MGM for taking his work, which he authored on his own accord because he was a big fan of the series. The court ruled that some of the characters the author created were developed enough to be copyrighted, while others were not. While Mars Argo existed for years, experts note, she didn’t have a signature outfit, specific backstory, or settled biography, making it harder to prove that she is well-defined in the same way that, say, Batman, Mickey Mouse, and Yoda are.

. . . .

“The right of publicity claim also seems very weak. A similar persona is not the same as actual use of someone’s identity—Madonna would not have a right of publicity claim against Lady Gaga, nor should she,” says Nazer.

Link to the rest at Wired

PG is skeptical to the max. Part of his problem is that he couldn’t bear to watch the videos of either “celebrity” for more than about 15 seconds.

Here’s a copy of the complaint so you can come to your own conclusions.



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