Copyright/Intellectual Property

Author Sues Universal Over Musical Theater Adaptation of ‘October Sky’

7 June 2016

From Yahoo Movies:

The author of the New York Times best-seller Rocket Boys is suing Universal Pictures for overstepping the life rights he granted in the 1990s and shutting down a musical adaptation of his book in favor of launching its own, according to a complaint filed Thursday in Los Angeles County Superior Court.

Homer Hickam Jr. says he agreed to give Universal the rights to one book to adapt into one film, October Sky.

Now he is suing Universal, and its president James Horowitz and vp of live theatricals Christopher Herzberger, for a host of claims including breach of contract, fraud, misappropriation and unfair competition. Hickam is seeking at least $20 million in damages, an injunction to shut down the October Sky musical and a declaration from the court that Universal does not have any rights to his life story other than the right to make the original 1999 film.

Rocket Boys is the story of Hickam’s life, centering on the family conflict surrounding his decision to build rockets instead of entering the coal mining business.The author claims he sold that story to Universal in 1996, and his now-deceased literary agent Mickey Freiberg assured Hickam that his sequels were protected and reserved, that the agreement was for one film only and that Universal would have to provide significant payment if it wanted to remake the movie or create a new project.

A decade later, Hickam developed and produced Rocket Boys into a live stage musical with the approval of Universal, according to the lawsuit. In 2015, Universal decided to create an October Sky musical, purportedly based on the film and Hickam’s memoir, and has shut down the author’s stage show.

“Universal has demanded that Hickam cease and desist in developing, producing and performing the Rocket Boys musical and accept a complete gag order that would punish him if he ever said a word about Universal’s wrongful and improper conduct,” states the complaint. “Universal has taken the completely fallacious position that Hickam has optioned all rights to Universal to make any and all motion pictures or live stage productions arising from any and all stories he may write about his life.”

Link to the rest at Yahoo Movies and thanks to Meryl for the tip.

PG will observe that deceased agents are not very useful for determining the meaning of ambiguous contract clauses.

If an author contractually grants rights to his/her book for the full length of the copyright (the remainder of the author’s life plus 70 years in the US and similar durations in other western countries), everybody involved in creating the contract will be dead before the contract ends. This is one of the many reasons for getting the language of the contract exactly right.

Of course, the consequences of poorly-drafted contract language would have fewer potential adverse consequences for the author if the contract’s duration was a more reasonable period of time. A misunderstanding that impacts an author for three years or five years or seven years is less serious than one the author will never outlive.

PG will also observe that the contracts of KDP and other ebook sales channels of which PG is aware may be terminated by either party at any time. This is not to say that authors should not take their KDP contracts seriously and understand the obligations contained therein, but an author who wants to take their book in a different direction can easily do so.

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Stealing Books in the Age of Self-Publishing

6 June 2016

From The Atlantic:

In the world of self-publishing, where anyone can put a document on Amazon and call it a book, many writers are seeing their work being appropriated without their permission. Some books are copied word-for-word while others are tinkered with just enough to make it tough for an automated plagiarism-checker to flag them. (Though the practice is legally considered copyright infringement, the term “plagiarism” is more widely used.) The offending books often stay up for weeks or even months at a time before they’re detected, usually by an astute reader. For the authors, this intrusion goes beyond threatening their livelihood. Writing a novel is a form of creative expression, and having it stolen by someone else, many say, can feel like a personal violation.

. . . .

There are pages on sites like Goodreads dedicated to identifying fake books, including plagiarized novels. Most of the plagiarism is happening to romance novels, which accounts for the largest proportion of ebook sales, but new cases are popping up in other genres as well, from cookbooks to mystery novels. Even public-domain classics like Alice’s Adventures in Wonderland and Dracula have been adapted and passed off as original works.

For authors, finding out their book has been plagiarized can be traumatic. This was especially the case for the best-selling author Opal Carew, who learned her serial romance Riding Steele had been plagiarized the same day her sister died from cancer. An hour after her sister passed away, Carew got an email from a friend saying the novelist Laura Harner had changed the genders of the characters in Carew’s work and published it under a different title. Apparently, Harner had done this before, stealing Becky McGraw’s novel My Kind of Trouble, switching genders, and calling it Coming Home Texas. For Carew, the news added surreal stress to her grief. “All my writing friends were sending me condolences about plagiarism, and all I could think about was my sister,” she said.

Unlike most offenders, Harner was well-known in the self-publishing community as an author of male/male romance novels. She has publicly acknowledged her actions, saying that “personal and professional issues … stretched me in ways that haven’t always been good for me.” The cases against her were settled for undisclosed amounts.

Some observers believed Harner resorted to plagiarism to keep her rankings up, Carew said. Before she was caught, Harner was considered unusually prolific, producing 75 novels in five years. Amazon rewards writers who come out with new books quickly by putting them higher in the rankings, which in turn means more sales. This policy also puts pressure on authors to write more to maintain visibility and to offset the dropping price of ebooks. “This may sound crazy, but I have 18 releases planned for this year,” Carew said. “In order to survive, I have to put out as many books as I can … If you’re living on your writing like I am, the stress can get to you.”

When a reader buys a self-published book, Amazon keeps 30 percent of the royalties and gives the rest to the authors—meaning the company makes money whether the book is plagiarized or not. A traditional publisher is liable if it puts out a book that violates copyright. But Amazon is protected from the same fate by  federal law as long as it removes the offending content.

Amazon regularly complies with this rule, and plagiarized books are removed from the site. However, it can take a while for the company to respond to complaints, which can be maddening for authors, since every day a fake book is up is a day they’re losing sales. The company spokesperson Justin O’Kelly said Amazon has a team dedicated to stopping plagiarism, but he wouldn’t go into details about their methods for fear of giving plagiarists ideas. “In the rare instance when plagiarized titles make it through, that same team makes sure they are taken down quickly, and repeat offenders are blocked,” he said.

. . . .

To be fair to Amazon, copyright infringement also occurs with other self-publishing retailers, including Barnes & Noble, iBookstore, Kobo, and Smashwords. Google Play has been accused of “rampant” piracy, with spammers selling books by Malcolm Gladwell, Sidney Sheldon, and Ellery Queen for $2.11 each. Still, Amazon has the biggest chunk of the self-published ebook market, with some estimates putting it at 85 percent. Without Amazon, few authors could make a living self publishing.

. . . .

Amazon reimburses royalties if the author can prove plagiarism, but it’s not a straightforward process. Even in cases where the company has removed books for copyright infringement, the author must provide further documentation to receive royalties. Luckily, O’Hanlon had the email from Clancy admitting guilt, which she forwarded to Amazon to receive payment. Still, most authors won’t be lucky enough to get a confession from their plagiarist and will likely have to hire a lawyer to get any royalties they’re owed.

Because plagiarists are driven more by financial motivations than creative or artistic ones, they tend to be repeat offenders.

Link to the rest at The Atlantic and thanks to Bill for the tip.

Of course, plagiarism and copyright violations were unknown before Amazon and indie publishing.

Martin Luther King plagiarised part of a chapter of his doctoral thesis. George Harrison was successfully sued for plagiarising the Chiffons’ He’s So Fine for My Sweet Lord. Alex Haley copied large passages of his novel Roots from The African by Harold Courlander. Princess Michael was accused of plagiarism over her book on royal brides. Jayson Blair, then a reporter for the New York Times, plagiarised many articles and faked quotes.

In 1997, less than six months after winning the Booker prize, Graham Swift’s Last Orders was at the centre of accusations that the author had crossed the line between inspiration and plagiarism by “directly imitating” an earlier work, the 1930 novel As I Lay Dying by William Faulkner. Confronted with the accusations, Swift said his book was an “echo” of Faulkner’s.

Link to the rest at A History of Plagiarism

Certainly, a modern-day traditional publisher would never publish a plagiarized manuscript.

How about Barnes & Noble and other physical bookstores? Do they refund any part of the proceeds received for selling a plagiarized book like Amazon does?

“Immature poets imitate; mature poets steal. Bad poets deface what they take.” – T.S. Eliot

Madonna Gets Victory Over ‘Vogue’ Sample at Appeals Court

3 June 2016

From Billboard:

On Thursday, the 9th Circuit Court of Appeals made it easier for musicians to sample small portions of song recordings by giving Madonna and her producer Robert “Shep” Pettibone a victory in a long-running lawsuit over the 1990 hit “Vogue.”

The decision affirms a 2013 ruling by a California federal court that held on summary judgment that a 0.23 second sampling of a horn hit from the 1976 song called “Love Break” was de minimis, meaning small enough to be trivial.

“After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit,” writes 9th Circuit judge Susan Graber in today’s opinion. “That common-sense conclusion is borne out by dry analysis. The horn hit is very short—less than a second. The horn hit occurs only a few times in Vogue. Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break… Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred.”

. . . .

“A computer program can, for instance, ‘sample’ a piece of one photograph and insert it into another photograph or work of art,” states the opinion (read here in full). “We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of ‘physical taking’ from another.”

Link to the rest at Billboard

Consumers believe they have more rights than they really do in digital media

27 May 2016

From Chris Meadows at TeleRead:

To buy or to license? That is the question that’s stumped a lot of e-book and other digital media consumers over the years, recently culminating in an author’s lawsuit against Simon & Schuster over sales versus licensing revenue. But just how badly has it stumped consumers? A pair of law school researchers undertook to find out, and the 60-page report on their study is fascinating reading.

Called “What We Buy When We ‘Buy Now,’” the study of almost 1,300 online consumers divided its participants into four groups, presenting each of the four with a different purchase option from a fictitious Internet retail store: a “buy now” button for digital media, a “license now” button for digital media, a notice listing the various things they could and couldn’t do with the digital media, and a “buy now” button for physical media. Afterward, the participants answered some questions about what rights they believed they had in the media they bought: the rights to keep, sell, gift, lend, copy, etc. said media.

. . . .

[C]ustomers presented with all three digital media purchase options by and large believed they had considerably greater ownership rights in their digital media than they actually do, though the ones who got the list of rights had the lowest level of misunderstanding. Conversely, the people who bought the physical media had the best understanding of the rights they had in it, but many of them believed they had fewer rights than they did. The researchers concluded that getting online stores to move to a rights list rather than a misleading “buy now” button would work best from a standpoint of reducing those misunderstandings.

. . . .

Another part of the report looked at how much consumers value these ownership rights, and whether they would be willing to pay extra for them. It concluded that many consumers do value ownership rights enough to pay extra for them, and would use streaming services or even illegal peer-to-peer to obtain media instead of “buying” it if such rights were not provided.

. . . .

The final part of the report looks at the possibility that Internet media stores using a “Buy Now” button could constitute false advertising, and the potential remedies that consumers might have against such stores.

Link to the rest at TeleRead

Google beats Oracle—Android makes “fair use” of Java APIs

27 May 2016

From Ars Technica:

Following a two-week trial, a federal jury concluded Thursday that Google’s Android operating system does not infringe Oracle-owned copyrights because its re-implementation of 37 Java APIs is protected by “fair use.”

. . . .

There was only one question on the special verdict form, asking if Google’s use of the Java APIs was a “fair use” under copyright law. The jury unanimously answered “yes,” in Google’s favor. The verdict ends the trial, which began earlier this month. If Oracle had won, the same jury would have gone into a “damages phase” to determine how much Google should pay. Because Google won, the trial is over.

. . . .

Google’s win somewhat softens the blow to software developers who previously thought programming language APIs were free to use. It’s still the case that APIs can be protected by copyright under the law of at least one appeals court. However, the first high-profile attempt to control APIs with copyright law has now been stymied by a “fair use” defense.

. . . .

“They copied 11,500 lines of code,” Oracle attorney Peter Bicks said during closing arguments. “It’s undisputed. They took the code, they copied it, and put it right into Android.”

Google countered that the Java language has always been “free and open” to use—and that included re-implementing Java APIs. Sun and its CEO Jonathan Schwartz accepted Android as a legitimate, if inconvenient, competitive product.

Link to the rest at Ars Technica

Harvard Loses Copyright Infringment Case Against Steve Elmo

25 May 2016

From Free Nampeyo:

The first entry in the Free Nampeyo blog discussed Harvard’s copyright infringement claims against Steve Elmore’s book In Search of Nampeyo: The Early Years 1875 – 1892.

. . . .

The subject of Harvard’s complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard’s Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore’s book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack’s ruling “Grants Defendant’s Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff’s Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). ”

. . . .

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe.

. . . .

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard’s cross-motion for partial summary judgement.  Judge Brack’s Opinion is that this is not a copyrightable photograph.

a1

Quoting from the Compendium of U. S. Copyright Practices, third edition “as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration”.  A photograph should not be registered “if it is clear the the photographer merely used the camera to copy the source work without adding any creative expression to the photo”.   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a “conservation image” taken as part of a “condition assessment” while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC). Below is a comparison of two of the black and white photographs and the illustrations created from them.

a1

First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show “a minimal degree of creativity–if only a humble spark”.  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs “to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece.”  However, just because a photograph is copyrightable does not mean that “every element of the work is protected….the less original the plaintiff’s work, the more the defendant must copy to infringe on the plaintiff’s copyright.”

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard’s photographs: “Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo.” (emphasis added).

Judge Brack notes that the protection of the HHC photographs is “incredibly limited” and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore’s illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: “Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore’s images, reasonable minds could not find substantial similarity between the two.”

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore’s use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

Link to the rest at Free Nampeyo

PG says most judges see very few copyright infringement cases and sometimes the way such cases are handled feels a little loose. In this matter, however, in PG’s effervescently humble opinion, the judge seems to be doing a good job.

PG hopes that Harvard becomes increasingly humiliated if it continues this bizarre litigation. It was a terrible idea to bring the suit in the first place and, having so thoroughly lost the first round, the Peabody Museum should quit misspending its endowment by trying to interfere with Mr. Elmo’s labor of love in spreading knowledge of a little-known Hopi artist to a wider audience.

Paramount’s Lawsuit Against Axanar Productions Star Trek Fan Film is ‘Going Away’

22 May 2016

From i09:

At last night’s Star Trek fan event, the latest trailer for Star Trek Beyond wasn’t the only newsworthy event: J.J. Abrams announced that Paramount Pictures’ lawsuit against Axanar Productions was “going away.”

io9 was at the fan event, where Abrams noted that Star Trek Beyond’s director, Justin Lin, was outraged at the legal situation that had arisen:

“A few months back there was a fan film, Axonar, that was getting made and there was this lawsuit that happened between the studio and these fans and Justin, I’ll tell the story because he probably wouldn’t, was sort of outraged by this as a long time fan. We started talking about it and realized this was not an appropriate way to deal with the fans.

The fans should be celebrating this thing. Fans of Star Trek are part of this world. So he went to the studio and pushed them to stop this lawsuit and now, within the next few weeks, it will be announced this is going away, and that fans would be able to continue working on their project”

The fan film has been embroiled in legal issues since December when CBS sued it for “direct, contributory and vicarious copyright infringement.” In April, the Language Creation Society filed an amicus brief in the case, making the argument that the Klingon language isn’t copyrightable.

. . . .

Axanar released a statement regarding the news:

While we’re grateful to receive the public support of JJ Abrams and Justin Lin, as the lawsuit remains pending, we want to make sure we go through all the proper steps to make sure all matters are settled with CBS and Paramount. Our goal from the beginning of this legal matter has been to address the concerns of the plaintiffs in a way that still allows us to tell the story of AXANAR and meets the expectations of the over 10,000 fans who financially supported our project.

There is still a lot of work to do, but receiving this kind of public support helps immensely.

Link to the rest at i09 and thanks to Joshua for the tip.

Be under no illusion: Malcolm Turnbull wants to destroy Australian literature

20 May 2016

From The Guardian:

It may seem at the moment that the only thing that will save the Australian book industry is moving every publisher and writer into Christopher Pyne’s electorate, and making them all wear hi-vis jackets and safety helmets.

For we have in recent weeks discovered that the Turnbull government is considering proposals for a writer to not have any rights in their work 15 to 25 years after it’s first published. So Mem Fox has no rights in Possum Magic. Stephanie Alexander has no rights in A Cook’s Companion. Elizabeth Harrower has no rights in The Watch Tower. John Coetzee has no rights in his Booker winning Life and Times of Michael K. Nor Peter Carey to The Kelly Gang, nor Tim Winton to Cloudstreet. Anyone can make money from these books except the one who wrote it.

The Abbott and now Turnbull governments’ record drips with a contempt for writers and writing that leaves me in despair. They want to thieve our past work, and, by ending parallel importation restrictions and territorial copyright, destroy any future for Australian writers.

That contempt has been made concrete in the report of the Orwellian titled Productivity Commission. The Productivity Commission doesn’t dare call books books. Instead they are called – in a flourish not unworthy of Don de Lillo –cultural externalities.

In their perverted world view, the book industry’s very success is a key argument in their need to destroy the book industry, and this determination to destroy an industry is revealed in their reports as the real aim of these proposals.

Just one highly revealing quote from the Productivity Commission:

The expansion of the books production industries over recent decades has attracted and held productive resources, notably skilled labour and capital, that have thereby been unavailable for use in other industries. The upshot will have been reduced growth in employment and output in other parts of the economy.”

Replace the clumsy phrase “book production industries” with the word “kulak”, and you would have ideological cant worthy of Stalin.

. . . .

Where is prime minister Turnbull’s much vaunted innovative economy in this decision? Where exactly, prime minister, are the jobs and innovation in destroying jobs and innovation? We employ people, some 25,000 by last count. We make billions, we pay tax, we make things and we sell them here and we sell them around the world. And all at no cost to the taxpayer. And now prime minister Turnbull would destroy it all.

We are not a subsidised industry. The fossil fuel industry gets $18bn of subsidies. A single South Australian submarine worker gets $17.9m. And writers? The total direct subsidy for all Australian writers is just $2.4m. That’s it. And that’s all.

. . . .

This is a speech given to the Australian Book Industry Awards in Sydney on 19 May

Link to the rest at The Guardian and thanks to Celine for the tip.

PG is not at all familiar with Australian politics, so many nuances underlying this article will be imperceptible to him.

In the US, the foundation for copyright law is found in Article I, Section 8, Clause 8 of the Constitution which grants congress the power:

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.

The “limited Times” part of copyright law has bounced all over the place.

The Copyright Act of 1790 set the duration of copyright protection as a term of 14 years from the recording of the copyright registration, with the right to renew for one additional 14 year term should the copyright holder still be alive. This structure mirrored the provisions of the Statute of Anne in Britain.

Today, the duration of copyright protection is for the life of the creator plus 70 years in the US.

As far as changes in the Australian law are concerned, Australia is a signatory to the The Berne Convention for the Protection of Literary and Artistic Works which requires that copyright protection last for at least 50 years after the author’s death for any work except for photographic and cinematographic works.

PG is not certain whether The Berne Convention is a bulwark or a speed bump for the supposed intention of the Australian government to substantially reduce the term of Australian copyrights.

Why is Harvard Claiming Copyright to Native American Designs?

11 May 2016

PG previously created a post on this topic.

A blog, Free Nampeyo, devoted to the dispute between Harvard University’s Peabody Museum and author/Hopi pottery expert Steve Elmore has been created. The following is excerpted from that blog.

From Free Nampeyo:

Steve Elmore is an Indian Trader and owner of Steve Elmore Indian Art in Santa Fe, New Mexico. He has been studying Hopi pottery for over twenty years and works closely with contemporary Hopi potters. Events were set in motion when Steven LeBlanc, then Director of Collections at the Peabody Museum of Archaeology and Ethnology at Harvard University asked Mr. Elmore to write a book for the Peabody Museum Press on his discovery that many of the ceramics in their Keam collection were the work of the great Hopi potter Nampeyo, and not a random assortment of pottery made by hundreds of different potters, as previously thought.

Steve wrote the book and submitted it, eventually receiving three reviews, which he was asked to respond to. He was then asked by the press to do a major revision of the book for the more scholarly “Papers” series, rather than the “Collections” series he had originally written for. Six months later, he submitted this second version. The manuscript was rejected. A Formal Notification letter from the board returned to him “all rights” in all versions of the manuscript. The letter recommended that he publish elsewhere and made some suggestions as to other publishing venues.

Relying on this letter, and double checking with several intellectual property attorneys, Steve decided to self publish the book, as it had already been through many reviews and was essentially finished. He published In Search of Nampeyo: The Early Years 1875 – 1892 in 2015. In Search of Nampeyo has won four national book awards, including awards for best art book and best interior design. It has received many positive reviews.

However, Harvard was displeased and sued him for breach of contract, copyright infringement, and false designation. Steve countersued on a number of charges including bad faith, interference with business, and conspiracy to steal intellectual property. Right now, the book is under a temporary injunction as Harvard has persuaded a judge that the book has caused them “irreparable harm”.

. . . .

The rest of this post will look into the copyright issues that are raised by Harvard’s lawsuit.

. . . .

The Keam collection was purchased by Mary Hemenway in 1892 and after she died, donated to Harvard in 1894. It was unpacked about 85 years later, and In 1980 Harvard published a book called Historic Hopi Ceramics (HHC) containing simple black and white photographs of the ceramics; it is a catalog of the collection. In the manuscript that Steve submitted to Harvard were some photos cut from HHC which he intended as place holders for future photography. After the manuscript was rejected, he hired a designer to do three color, hand drawn, illustrations of the designs on these pieces of pottery and included these in his book. These illustrations are the subject of Harvard’s copyright infringement suit. Harvard did not make any of the pottery and all these pieces of pottery were made before 1892 when the collection was purchased, so all would be considered in the public domain. Harvard’s argument is that since they photographed the pottery, no one can make copies of the designs depicted in their photographs.

. . . .

In Hopi culture, designs are passed down in families. Nampeyo taught her daughters to make pots and passed her designs to them and these designs have now been passed down and are in use by the fourth and fifth generations. Nampeyo family potters consider the designs to belong to them and/or to their culture. Despite Harvard’s statements to the contrary, if the court rules in their favor, Harvard would in fact own not just the copyright to their photographs, but to the designs themselves.

Steve did not use their photographs, nor did he make exact copies of their photographs. The illustrations leave out all details of the pottery itself such as shadows, chips, cracks, uneven paint and slip, and fire clouds. They also idealize the design, adding elements not visible in the photographs. It is the designs that are the subject of the text and shown in the illustrations. While it is true that the designer did use the photographs from HHC to create his designs, he also used additional sources in order to see the details of the designs and colors.

. . . .

However, the fact that a Hopi pot was included in the photograph certainly does not give the photographer ownership of the design on that pot. Court decisions have often relied on the technique of first filtering out public domain portions of the photograph, and judging copyright claims on the basis of the remaining elements. On the other end of the spectrum is a verbatim copy. If Harvard’s own photograph was simply reproduced in Steve’s book, this might be considered a copyright violation.

I say might be considered a copyright violation because the issue of fair use must be considered. Since Mr. Elmore picked out a small number of pots from the entire Keam collection to use in a scholarly argument establishing Nampeyo as the artist who made these pots, the use he made of HHC should be considered transformative of the original work and serving the purpose that the fair use doctrine was established for, furthering the development and presentation of new knowledge. He did not use the “heart” of HHC, which is simply a catalog and he did not decrease the value of the original book. In fact HHC has increased in value since Steve published In Search of Nampeyo.

Link to the rest at Free Nampeyo and thanks to Linda for the tip.

PG is reminded of a quote attributed to Wallace Sayre, “Academic politics is the most vicious and bitter form of politics, because the stakes are so low.”

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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