Copyright/Intellectual Property

Richard Prince defends reuse of others’ photographs

15 October 2018

From The Art Newspaper:

In two cases testing copyright law in social media, the artist Richard Prince is asking a federal court in Manhattan to rule that two of his Instagram-based works constitute fair use of photographs taken by others.

Both are from Prince’s 2014 New Portraits series, in which he enlarged and printed Instagram posts with such images. One uses a Donald Graham photograph, Rastafarian Smoking a Joint, and the other Eric McNatt’s photograph of the musician and artist Kim Gordon. Before enlarging the posts, Prince deleted some comments and added one of his own but left the photographs largely unaltered. Graham and McNatt sued, alleging copyright infringement.

Last year a US District Court judge rejected Prince’s motion to dismiss Graham’s case. To constitute fair use, the judge said, the “reasonable observer” must conclude that Prince imbued Graham’s photograph with new meaning, expression or purpose. Because Prince used essentially the entirety of Graham’s photograph without “substantial aesthetic alterations”, he said, the artist needed “substantial evidentiary support” to prove that his work was transformative.

This time around, in summary judgment motions filed on 5 and 9 October, Prince argues that he had to use as much of the photograph as appeared in the Instagram post to accomplish his purpose. In a 15-page statement calling his iPhone a paintbrush, Prince explains that he wanted “to reimagine traditional portraiture and bring to a canvas and art gallery a physical representation of the virtual world of social media”. Had he altered the photographs, he says, that intent would go unseen.

To establish what a reasonable observer would see, Prince has enlisted art world luminaries. For example, the director of the New Museum, Lisa Phillips, says in court documents, “An image need not be altered to be transformed into a new work of art”, noting Prince’s long practice of appropriation. Whereas the photographs convey meaning about individuals, says Brian Wallis, curator of the Walther Collection in New York and former deputy director of the International Center of Photography, Prince’s works “refer to the way these portraits are already transformed by Instagram as a medium of communication”. And the dealer Daniel Wolf says the meaning in Prince’s works “is not in the photograph; the meaning is in the Instagram”.

. . . .

Amy Whitaker . . .  says, “While I admire the imaginativeness required to wrest [transformative] meaning from five words and one emoji”, that interpretation “rests solely” on the “brand of the artist”.

Link to the rest at The Art Newspaper

 

From Page Six:

Controversial artist Richard Prince is back in court for an ongoing copyright case over two photographs used in his 2014 “New Portraits” series that were taken by artists Donald Graham and Eric McNatt. Prince — who took the images from Instagram and printed them largely unaltered with a comment he added — is arguing that his iPhone is a “paintbrush.”

Link to the rest at Page Six

PG observes that using a paintbrush to modify an original work without also using paint is a very conceptual alteration of the original to create a new work. PG thinks the Instagram artist will not be successful with his second legal theory, either. But, as usual, he could be wrong.

Here is a photo of one of PG’s Coke Zero cans (empty) for which he used his iPhone as a paintbrush. It is placed here strictly as an illustrative demonstration that it is not fair use for purposes of existing as an independent work of art (although PG believes his depiction is more transformative than Mr. Prince’s is because he used his iPhone as a camera instead of as a paintbrush without paint).

PG has elected not to disturb his shrinking group of Instagram followers by inflicting a copy of this photo on them via online means.

When the web started

11 October 2018

When the web started, I used to get really grumpy with people because they put my poems up. They put my stories up. They put my stuff up on the web. I had this belief, which was completely erroneous, that if people put your stuff up on the web and you didn’t tell them to take it down, you would lose your copyright, which actually, is simply not true.

And I also got very grumpy because I felt like they were pirating my stuff, that it was bad. And then I started to notice that two things seemed much more significant. One of which was… places where I was being pirated, particularly Russia where people were translating my stuff into Russian and spreading around into the world, I was selling more and more books. People were discovering me through being pirated. Then they were going out and buying the real books, and when a new book would come out in Russia, it would sell more and more copies. I thought this was fascinating, and I tried a few experiments. Some of them are quite hard, you know, persuading my publisher for example to take one of my books and put it out for free. We took “American Gods,” a book that was still selling and selling very well, and for a month they put it up completely free on their website. You could read it and you could download it. What happened was sales of my books, through independent bookstores, because that’s all we were measuring it through, went up the following month three hundred percent.

I started to realize that actually, you’re not losing books. You’re not losing sales by having stuff out there. When I give a big talk now on these kinds of subjects and people say, “Well, what about the sales that I’m losing through having stuff copied, through having stuff floating out there?” I started asking audiences to just raise their hands for one question. Which is, I’d say, “Okay, do you have a favorite author?” They’d say, “Yes.” and I’d say, “Good. What I want is for everybody who discovered their favorite author by being lent a book, put up your hands.” And then, “Anybody who discovered your favorite author by walking into a bookstore and buying a book raise your hands.” And it’s probably about five, ten percent of the people who actually discovered an author who’s their favorite author, who is the person who they buy everything of. They buy the hardbacks and they treasure the fact that they got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it, and that’s how they found their favorite author. And I thought, “You know, that’s really all this is. It’s people lending books. And you can’t look on that as a loss of sale. It’s not a lost sale, nobody who would have bought your book is not buying it because they can find it for free.”

What you’re actually doing is advertising. You’re reaching more people, you’re raising awareness. Understanding that gave me a whole new idea of the shape of copyright and of what the web was doing. Because the biggest thing the web is doing is allowing people to hear things. Allowing people to read things. Allowing people to see things that they would never have otherwise seen. And I think, basically, that’s an incredibly good thing.

~ Neil Gaiman

Senate passes copyright bill to end 140-year protection for old songs

11 October 2018

From Ars Technica:

For the last decade, the Congressional debate over copyright law has been in a stalemate. Content companies have pushed for stronger protections, but their efforts have been stopped by a coalition of technology companies and digital rights groups.

But on Tuesday, we saw a rare moment of bipartisan and trans-industry harmony on copyright law, as the Senate unanimously passed the Music Modernization Act, a bill that creates a streamlined process for online services to license music and federalizes America’s bizarre patchwork of state laws governing music recorded before 1972. That will mean effectively shortening the term of protection of older music published between 1923 and 1954—under current law, these songs may not fall into the public domain until 2067.

. . . .

US law provides two different types of copyright protection that apply when someone streams a song online. There’s protection for the composer or songwriter, and there’s a separate copyright for the music recording. Services like Pandora and Spotify typically need licenses for both types of rights in order to stream a song online.

Right now, the system for licensing the songwriters’ copyright (known as “mechanical rights” for historical reasons) is a mess. Streaming services have had trouble identifying the owners of music rights, which has led to songwriters not getting paid and streaming services periodically getting sued for non-payment.

The Music Modernization Act aims to establish a modern system for licensing mechanical rights. It creates a new national database that will aim to cover all copyrighted music in the United States. If all goes according to plan, this new organization will offer streaming services “one stop shopping” for getting songwriters’ licenses for all the songs they want to stream, with the database helping to get the funds to the appropriate songwriters and music publishers.

This would make the licensing of mechanical rights more like the system used for licensing yet another music-related copyright: the right to perform music publicly. If you own a concert hall or other venue where music is played publicly, you sign licensing agreements with three national organizations—ASCAP, BMI, and SESAC—which together have arrangements with the vast majority of the nation’s music publishers.

That gets venues a blanket license to play any music they want to. It’s the job of ASCAP, BMI, and SESAC to figure out which music gets performed most often and divvy up the revenue accordingly. Companies that stream music online would like to have a similar arrangement, and the Music Modernization Act aims to give it to them.

. . . .

The legislation also changes how copyright law treats sound recordings made prior to 1972. Prior to 1972, the composer of a song could get copyright protection, but a recording artist couldn’t get copyright protection at all. Instead, song recordings were covered by a patchwork of state-level laws, some of which gave artists copyright-like protection, and others did not. Under existing federal law, these state-level laws will eventually be preempted but not until 2067.

. . . .

According to Public Knowledge’s Ryan Clough, works published before 1923 would expire three years after the legislation was passed. Works published between 1923 and 1946 would get the same 95-year term as other types of work—albeit with an extra five-year “transition period” following the 95-year term. Works published between 1947 and 1956 would get a total of 110 years of protection, while works published between 1957 and 1972 would expire in 2067—the same as under current law.

That’s a long time, but it’s arguably an improvement over existing law, where a song recorded in 1927 gets 140 years of state quasi-copyright protection before officially falling into the public domain in 2067.

Link to the rest at Ars Technica

PG is an advocate for strong copyright protection for creators. (Among many other reasons for PG’s advocacy is that Mrs. PG receives benefits from the copyrights she owns for the books she has written.)

The U.S. Constitution gives Congress the ability “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The underlying policy basis for the protection of creators via copyright and patents is that the federal government passes laws that enable creators to exclusively profit from their creations for a period of time in exchange for the creators sharing their creations via a filing with the government that discloses their creations.

For patents, the disclosure in the patent application must be in clear, full, concise, and exact terms to enable any person skilled in the art or science to which the invention pertains to make and use the same. In exchange for patent protection, including the right to prevent others from making the invention without a license from the patent holder, the creator must disclose (as opposed to keeping confidential) how to make and use the invention.

For patents, the general public benefits because creators who are rewarded for their useful inventions are incented to create additional inventions, such disclosures encourage the progression of discovery and development in the fields for which patents may be granted – devices, machines, manufactured items, chemical compounds (drugs), processes, designs, plant varieties that are asexually produced, etc., etc. Even though the creator has exclusive control over the patented inventions, everyone is free to review the patent which describes the inventions and general knowledge about the subject of the patent is increased.

With copyrights, the public benefits from the creation of more expressive works (fiction, non-fiction, art, etc.) because creators can control ownership of expressive works, receive payment for their works, etc.

However, if patent and copyright protections are in place for an over-long period of time, competitors may be discouraged, the financial benefits of the creations flow to people who are not the creators and, if the creator has assigned exclusive rights to a third party, the creator may be prevented or discouraged from making further related creations because doing so might infringe upon the rights of the new owners of the patent or copyright.

 

Shadow Libraries: How Students Get What They Need

11 October 2018

From American University Intellectual Property Brief:

While more students around the world are accessing higher education, the cost of materials is becoming a larger roadblock.  At the Fifth Annual Global Congress on Intellectual Property and the Public Interest, a panel spoke to the reasons for such increase in costs, and efforts of universities, faculty, and students to get these necessary materials.  Their book, Shadow Libraries, explores these methods, including the formal, the informal, and the illegal, from going to the library to buying books.  Prevalent amongst these methods is the often illegal student workaround of photocopying a book or downloading a copy.

The story of Aleksandra Elbakyan and Sci-Hub, a Russian student and her pirate website of research papers and scholarly journals, is prime example of the shadow library.  Unpopular with publishers looking for payment, Sci-Hub is hugely controversial for its vast sharing of copyrighted materials, as it has transformed access to and dissemination of educational materials.

As the editor of Shadow Libraries, Joe Karaganis, explained, educational materials are becoming increasingly out of reach for many students around the world.  The rapid growth of students in higher education, poorer students with less financial support, publishers consolidating and monopolizing scholarly works, and, no doubt, technological advances have are all coming together to incentivize and aid students in their efforts to get materials. Since the invention of the Xerox, students have found a way to circumvent the inhibiting cost of materials, and the prevalence of the internet has allowed students to collect and share a wealth of scholarly work.

. . . .

Although the internet is a prevalent resource for educational materials, as exemplified through sites like Sci-Hub and LibGen, print media is still very relevant.  Reia explains her own experience creating a resource for her students to access all the course materials for her class.  Even with this free and easy access, her students still requested print copies. The students attributed this desire to the high cost of photocopying and their desire to read in locations without internet access.

While finding the materials they need, these students are continuing push the boundaries of law, often unaware of IP law and policies, or what sources are legal or illegal. Brazil’s copyright law allowed individuals to copy works for not-for-profit use until 1998, leading to a deeply ingrained copy culture in universities.

Link to the rest at Intellectual Property Brief

The Ius Imaginum of Ancient Rome: Was it the first Copyright Law?

9 October 2018

From Hugh Stephens Blog:

As any student of copyright knows, we can trace copyright law back to the Statute of Anne in 1709, (entered into force on April 10, 1710 as the Copyright Act of 1710), when the British Parliament passed the first legislation to protect the rights of British book publishers. The initial period of protection was 14 years. According to “commonly accepted wisdom” (i.e. Wikipedia), this was the first statute to provide for copyright regulated by the government and the courts, rather than by private parties. From there, copyright law evolved into the national and international regime that we know today, including its inclusion in the US constitution as Article 1.Section 8. Clause 8., giving to Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Is the Statute of Anne the first legislation to protect copyright as the expression and reproduction of ideas and images? I always thought so. After all, that was what Wikipedia said so it must be true!

. . . .

In fact, if one digs a little deeper, one discovers a treasure trove of studies relating to earlier copyright, predating the Statute of Anne by at least a couple of centuries. The Republic of Venice, a centre for book publishing in the 15th and 16th centuries was particularly active in granting a “privilegio” to certain publishers to print a particular text, to prevent other from importing the text and to certain bookshops to sell a certain text. But the privilegio was not just limited to printers and publishers although that was the most common form of “copyright”.

. . . .

When I was in Italy this past summer looking at busts and statues of Roman notables, I came across this explanation of the ius imaginum in the Palazzo Massimo, part of the National Museum of Rome.

“Portraits, formerly the preserve of aristocratic families, were an exclusive right to an image and governed by a group of regulations known as the “ius imaginum”; they quickly spread as an art form particularly in the age of Sulla (1stC. BC.), following a tradition of portraiture which is attested to by the custom of exhibiting wax masks of ancestors, like a genealogical tree, in the entrances of Roman homes”.

The English translation appears a bit stilted but it seems that there was a Roman law granting the exclusive right to create and display images (of ancestors) to certain identified individuals, namely those holding the office of higher magistrate known as aedile, or magistratus cerules. Only those holding this position were granted the exclusive right to produce and display family portraits.

. . . .

It is worth going back to basic principles of copyright for a moment. Exclusivity has always conferred a certain cachet, and often economic benefit, on objects or works. A mass produced work of art is not as valuable as a numbered print, not to speak of an original. The rights-holder, today normally the creator of the work, whether a work of art, a work of literature, a musical composition or other form of creation, should have the right to determine the form and degree of exposure of that work, and thus its economic value. The creator needs these basic rights in order to exploit the full potential of the work as he or she sees fit, whether by licensing the rights for commercial use under specified circumstances, or by licensing it for use by all without remuneration, with various variations in between. That is a creator’s right, seen as a fundamental right in some jurisdictions, and as an economic right in others. In contemporary law that right is time-limited, and is subject to various limitations to allow others certain uses of the material without permission or compensation (the source of much debate) under specified circumstances. These exceptions to absolute exclusivity also allow creators themselves to build on the work of those who have preceded them.

That is how things have evolved, but it all goes back to the fundamental principle of possessing rights, both moral and economic, in intellectual property.

Link to the rest at Hugh Stephens Blog

Ten things you should know about Instagram’s terms of use

7 October 2018

From Inforrm’s Blog:

1. The terms are confusing

Users must agree to the terms of use before they can have an Instagram account. The minimum age to sign up is 13. But the reading age for the terms are closer to university level. They are written using complicated language. For example, the licence granted is described as “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of”.

2. You own your own photos, right?

Instagram claims it does not take ownership of its users’ content. But the terms state that the user grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”. What this means is that Instagram has all the rights of the original owner of the content – aside from the fact that it is not an exclusive licence. It is important that photographers are aware of this because if they sell an image under an exclusive licence, posting the image on their Instagram would breach that licence.

3. Instagram can give away or sell your content

Instagram can sub-licence your content. This means that it could licence a user’s photograph or video to any third party, for free, without seeking permission, giving any notice or offering any payment to the user. It could also take a user’s content and let another company use that photo in exchange for a fee – which Instagram keeps.

. . . .

7. It’s a one-way street

The terms state that the same rules do not apply to Instagram’s content, which they specify is protected by Intellectual Property and cannot be copied, modified, edited, published, used or licenced. This restrictive approach is particularly problematic for other app developers, such as those who create apps to work in conjunction with Instagram to perform additional functions, such as analysing followers, unfollowers and boosting likes.

. . . .

10. Instagram should do better

Instagram’s user agreement gives it unnecessarily broad rights over its users’ content. It encourages sharing – for the benefit of advertising revenues – but leave users vulnerable to copyright infringement claims.

In my own research I have argued that Instagram should introduce an improved copyright policy that includes:

  • amending its user agreement so that it is clearer and fairer towards users and does not leave them vulnerable to copyright claims, or licence breaches.
  • adopting a “Notice and Takedown procedure” so users can request that infringing copies of their work are taken down by Instagram – similar to when content is blocked for copyright reasons on YouTube to enable copyright holders to enforce their rights, rather than taking court action.
  • the company should introduce a copyright education tool to provide information and awareness about the law to its users and inform copyright holders when another user has screen-grabbed their image (while at the same issuing a copyright notice to the person who has taken the grab).

If Instagram does not take these steps, the company might find itself in a spot of trouble. Just this month, the Paris Court of First Instance found that Twitter’s Terms of Use (not dissimilar to Instagram’s) were void and unenforceable because they were “abusive” towards users. Twitter, which could face fines of up to €30,000, will now have to remove terms and replace them with ones which are compliant.

Link to the rest at Inforrm’s Blog

Data, Algorithms & Authorship in the 21st Century

5 October 2018

From SSRN (footnotes omitted, a few paragraph breaks added):

“Data is the new gold. It’s the new oil. It’s the new plastics.”
— Mark Cuban, 2017

Over the last decade the music, motion picture, and publishing industries have faced what many have characterized as a crisis. Online piracy and the digital technologies that enable it are said to have destroyed traditional models of content creation and distribution.

The music industry is most often offered as the leading example. In the nearly two decades since the digital file-sharing service Napster burst on the scene, recording company revenues have plunged by approximately 72% in the U.S., or almost 80% adjusted for inflation.

A great deal of that decline in revenue can be traced to the ability to distribute and share content digitally without either legal permission or much chance of consequence.

The story appears to be dire, and yet it is increasingly obvious that the crisis narrative obscures more than it reveals. To be sure, the shift to digital and the related upsurge in online piracy — a phenomenon we refer to here as the “first digital disruption” — dramatically re-organized power within the music industry and transformed the ways in which the industry does business and makes (or does not make) money. But the industry adjusted, and the disruption did not fundamentally change the way music is created.

The first digital disruption mainly undermined a particular set of music industry business models. Most of the impact fell on middlemen (record labels, publishing companies, and retailers) who saw their revenues sink. And even there, the story has been as much about creation as disruption. Record labels, formerly the dominant force in the industry, are much diminished today.

But streaming services, such as Spotify, Apple Music, and Tidal, once tiny, are now important players. Turning the destructive potential of digital distribution on its head, they have utilized the internet to pioneer new and lucrative modes of content dissemination. Indeed, the total revenue of digital distributors now exceeds the total revenues of recording companies.

The U.S. live music industry has also grown substantially, and is expected to continue to grow at about twice the rate of the overall economy.  And even as record company revenues have shrunk, the best evidence suggests that more music is being produced than ever before.

On the other side of the market, consumers pay less, and have more access to, that cornucopia of music than ever before.

The next digital disruption is going to reach deeper. It will re-order how creative work is produced, and not simply how it is promoted and sold. It will transform our notions of authorship. It will raise fundamental questions about the nature and value of human creativity. And, perhaps less consequentially for the world at large — but of central importance to lawyers — it may shift how we think about the the value and utility of, and even the moral justification for, intellectual property rules.

What is this second digital disruption? We can see its onset in the high-stakes merger between AT&T, which owns digital cable and satellite networks for distributing video programming, and Time Warner, which produces film and television content. The Department of Justice challenged the merger, arguing that it would harm competition in video programming and distribution markets. In its pre-trial brief, Time Warner argued for the merger by noting that, as a stand-alone content producer it faced a competitive disadvantage versus rivals, such as Netflix, Google, and Facebook, that produce content but also own a digital distribution platform. As Time Warner argued:

First, unlike Google and Facebook, Time Warner has no access to meaningful data about its customers and their needs, interests, and preferences. In most cases, Time Warner does not even know its viewers’ names. This data gap impedes its ability to compete with Google, Facebook, and other digital companies in advertising sales, which are critical to Turner [Broadcasting (the owner of Time Warner]’s viability, and which allow Turner to keep subscription fees much lower than they otherwise would be. Whereas digital companies have the data and the technology to deliver advertisements that are both specifically addressed (shown) to a particular viewer and tailored to that viewer’s specific needs and interests, Time Warner cannot target its television advertising in those ways, creating an increasing competitive disadvantage for the company. The data gap also gives online video programmers a competitive advantage in the production and aggregation of content based on extensive data about the content preferences of their viewers.

This spring Judge Richard Leon of the United States District Court for the District of Columbia agreed, holding that “traditional programmers and distributors are experiencing increased competition from innovative, over-the-top content services [i.e., companies that provide video programming over the Internet] …. Those web-based companies are harnessing the power of the internet and data to provide lower-cost, better-tailored programming content directly to consumers. The dramatic growth of the leading [Internet video providers] in particular, including Netflix, Hulu, and Amazon Prime, can be traced in part to the value conferred by vertical integration — that is, to having content creation and aggregation as well as content distribution under the same roof.”

Data is at the core of the second digital disruption. In Mark Cuban’s words, data is “the new gold”: the resource that will create, and likely destroy, fortunes in the content business.

The “data gap” Time Warner spoke of is not just a competitive disadvantage for firms that produce many different types of creative content. Access to data about consumer preferences is rapidly becoming a competitive necessity, and the inability to gather such data, on a massive scale, is a fundamental disability.

Increasingly, we will see the rise of firms that own large and even dominant digital distribution platforms but also produce content for those platforms. Indeed, this trend is visible already. Netflix, Amazon, and, not yet but perhaps soon, Spotify, use the data they collect on consumer preferences and usage to make decisions about advertisements. All now use this data to decide how to organize and recommend content to users.

And some use their data to produce content that is more effectively targeted to consumer preferences. It is this last twist — the use of data to shape content creation, which we refer to as “data-driven authorship” — that is ultimately the most interesting feature of this new model.

Link to the rest at SSRN

PG says indie authors are conducting a variation on the concept in the OP with increasingly sophisticated salting of key words within their promotional materials in order to attract the types of people who will want to purchase their books.

One example is the more frequent use of author or title comparisons in book descriptions, such as, “If you like Penelope Blunderbuss, you’ll love ________”

When Amazon’s algorithms are trying to present books a reader will want to purchase, if that reader has just finished a book by Penelope, the algorithms may bump a book that includes Penelope’s name up near the top of its suggestions for that reader.

This is the great, great, great grand-descendant of Search Engine Optimization, first used by PG about 15 years ago to push his company’s products higher in the Google search results when people searched for those products.

Search algorithms have become enormously more sophisticated during the intervening years, particularly at Amazon, where they know both what you’ve searched for and what you’ve purchased, but the first principle of a successful search engine – show the customer what the customer wants to see – hasn’t changed.

Licensing Like a Champion

3 October 2018

From The 1709 Blog:

Spinelli v. National Football League, No 17-0673 (HT Court House News for the link to the document). The case is about copyright licensing, retroactive and royalty-free licensing and a touch (down) of football.

Plaintiffs are seven sports photographers. Defendants are the Associated Press (AP), the National Football League (NFL) and the 32 NFL teams. If you do not know the names of the NFL teams, you can read their complete list in the document (The Falcons! The Steelers! The Forty Niners!)

The photographers filed a copyright infringement suit in 2013 against the NFL and AP in the Southern District of New York (SDNY), claiming that AP had granted the NFL a royalty-free license without permission from the authors of the photographs.

. . . .

In order to take and use photographs from an NFL event, one needs to secure a license from the NFL, as such photographs almost always contain NFL trademarks. Getty had the exclusive worldwide right to license NFL’s pictures from 2004 to 2009, and then AP became the NFL’s exclusive licensor.

Plaintiffs had entered into “contributor agreements” with AP which allowed them to access NFL events, and to obtain licenses for the intellectual property contained in the photographs they took at these events. Plaintiffs took thousands of NFL photographs, during games or practices. Some of these pictures feature NFL trademarks, but others did not.

. . . .

The original agreement between the NFL and AP, which lasted from 2009 to 2012, had granted the NFL a royalty-free license to use “AP-owned” images, but had not extended this license to images taken by non-AP contributors. However a new agreement, entered into in 2012, extended the royalty-free license granted to the NFL to photographs taken by non-AP contributing photographers.

Plaintiffs had indeed provided AP a “perpetual, irrevocable transferable worldwide right and license to reproduce, edit, translate the caption of, prepare derivative works of, publicly perform, publicly display, load into computer memory, cache, store and otherwise use“ their works along with the right to “transfer or sublicense these rights to other entities.” This agreement was lucrative for the Plaintiffs, as AP payed royalties when it licensed one of the works. At issue in this case was whether Plaintiffs had thus allowed AP to grant royalty-free licenses to the NFL.

For the SDNY, copyright law gives copyright owners and their exclusive licensees the right to freely grant a license “after the fact” as they see fit, quoting Wu v. Pearson, 2013 WL 145666, at 4: “[T]here is no legal prohibition to obtaining a retroactive license if it is authorized by the rights holder.” Plaintiffs had argued instead that, citing the 2007 Davis v. Blige Second Circuit decision, that AP could not grant a retroactive license. In Davis, the Second Circuit had rejected retroactive copyright licensing as a way to cure past infringement.

. . . .

In our case, the Second Circuit found that even though facts in our case were slightly different than the ones in Davis, the court had to come to the same conclusion. The Second Circuit reasoned that Plaintiffs had the right, before the execution of the 2012 AP-NFL agreement, to sue the NFL for copyright infringement. Therefore, if AP could grant a license to the NFL retroactively in 2012, that right would have thus been extinguished, and “[d]oing so was impermissible, irrespective of whether AP had the authority to issue a prospective license to the NFL starting in 2009.”

Link to the rest at The 1709 Blog

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