Copyright/Intellectual Property

Government gives illustrated publishers July deadline

22 April 2016

From The Bookseller:

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

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

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

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

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

Link to the rest at The Bookseller

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Supreme Court rejects challenge to Google book-scanning project

18 April 2016

From Reuters:

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

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

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

. . . .

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

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

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

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

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

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

Food plagiarism. You can’t stop it.

16 April 2016

From The Washington Post:

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

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

. . . .

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

Call it food plagiarism.

And the examples go way beyond the Cronut.

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

. . . .

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

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

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

Point a pastry-cream-covered finger at Instagram.

Link to the rest at The Washington Post 

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

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

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

Stairway to (copyright) Heaven

13 April 2016

From The Washington Post Volokh Conspiracy Blog:

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

. . . .

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

. . . .

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

. . . .

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

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

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

. . . .

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

Link to the rest at The Washington Post

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

Media companies’ concern

13 April 2016

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

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

Charles Mann

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

12 April 2016

From The Guardian:

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

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

. . . .

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

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

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

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

Link to the rest at The Guardian

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Only one thing is impossible

12 April 2016

Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble.

Mark Twain

Internet hyperlinks do not infringe copyright, EU court advised

7 April 2016

From Reuters:

A link to a website which publishes photos without authorisation of the author does not in itself constitute a copyright infringement, an adviser to Europe’s top court said on Thursday.

. . . .

While European Union rules say every act of communication of a copyrighted work has to be cleared by the copyright owner, it would be to the detriment of the Internet to make hyperlinks fall under these rules, the advocate general said.

The case arose in the Netherlands where the GeenStijl website had provided a link to an Australian site showing pictures of a Dutch celebrity taken by Playboy magazine. The Australian site did not have Playboy’s consent to do so.

“Hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,” the opinion said.

Link to the rest at Reuters

Chapman law professor looks to shift the thinking on copyright

6 April 2016

From The Orange County Register:

In 1928, Mickey Mouse was released to the world in the animated short “Steamboat Willie,” with a maximum 56-year copyright term before the iconic rodent would be released to the public domain.

Obviously, that last part didn’t happen. The copyright for Disney’s beloved mascot was given a new lease on his copyrighted life thanks to the Copyright Act of 1976, extending his protection to 2003. It happened again with the Sonny Bono Copyright Term Extension Act of 1998, which pushed the mouse’s protection up through 2023.

This trend of extension is known to some as the “Mickey Mouse Curve,” but the desire for such copyright extensions is hardly exclusive to Disney. Countless groups have lobbied for changes to copyright laws over the years, and there have been major transformations to show for it – not all of them helpful to the average creator, much less consumers.

. . . .

“Intellectual privilege” is a contrast to the term “intellectual property” usually used in reference to copyrighted material. Bell proposes that we might better understand copyright by thinking of it as a government-granted privilege, rather than tangible property that we own. To contrast the two, consider a basic idea of tangible property – your home. Copyrights are designed to expire at a certain point, but if you own your house, it won’t arbitrarily be taken away from you if you own it for a certain period of time. Fair use is also a consideration – copyright holders must make room for fair use, but you’d never be expected to let a stranger borrow a room in your home without your permission, citing “fair use.”

Bell’s book is published under the “Founder’s Copyright,” also known as copyright law as it existed in 1790. At that time, the copyright statute of the United States, about 1,308 words long, gave authors monopoly over their creations for 14 years with an option to renew for another 14, totaling 28 years.

Link to the rest at The Orange County Register and thanks to Jacqueline for the tip.

With due respect to Professor Bell, PG doesn’t recommend that his clients rely upon Founder’s Copyright to protect their work.

Harvard Sues Elmore, Gets Injunction Stopping Sales of

29 March 2016

From the Maine Antique Digest:

A lawsuit filed in federal court in New Mexico in June 2015 pits Harvard University, which has about a $37 billion endowment, against Steve Elmore, an antiques dealer who patched together $36,000 to self-publish a book. The suit may hinge on the definition of the word “manuscript.”

. . . .

In 2015 Elmore of Santa Fe, New Mexico, self-published a 217-page book, In Search of Nampeyo: The Early Years, 1875-1892. It was the culmination of decades of work and research. His publication was also the result of Elmore’s being rejected by the Peabody Museum Press, the publishing arm of the Peabody Museum of Archaeology and Ethnology at Harvard University.

In its suit, Harvard claims Elmore used photos he took in the Peabody Museum after signing an agreement that specified how he would use the photos and restricted their use. Elmore counters that Harvard released all its rights to the manuscript and wants to publish his decades of research without crediting him.

According to court documents, in August 2010 Elmore signed a contract with the Peabody Museum Press to write a manuscript on Nampeyo. The contract noted that the manuscript was subject to peer review and promised “potential publication,” and Elmore was paid $1500 to conduct research at the museum.

. . . .

“The first version of my manuscript was sent out for peer review, with two out of three reviewers recommending publication with revisions. The editor asked me to revise the book for the more scholarly ‘Peabody Museum Papers’ series. She asked me to explain my methodology and to link my work to art history, which I did. The new version of my manuscript, complete with my photos, took me another year and added 100 pages to my manuscript. In November 2013 I submitted this final version…and it was rejected with little comment in January 2014 by the Peabody Museum Press board of directors,” said Elmore.

The rejection letter’s language is the subject of dispute.

In a letter dated January 21, 2014, Joan Kathryn O’Donnell, director of the Peabody Museum Press, rejected Elmore’s manuscript because it was not a fit with the Peabody’s “editorial and publishing priorities and standards.” Elmore’s approach to the material, the letter said, was “inappropriate” for the Peabody’s scholarly publication series, and it quoted a board member who leveled a stark criticism. “We are an academic press, and this is not an academic book,” the unnamed board member said.

The rejection letter stated that the Peabody Museum Press was returning to Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press.” O’Donnell encouraged Elmore to publish elsewhere, even offering ten to 15 high-quality photographs and suggesting American Indian Art Magazine as a possible venue. “We tried very hard to make this project work,” O’Donnell lamented.

Elmore took O’Donnell’s advice but didn’t go the magazine route, and he didn’t accept the Peabody’s offer of photographs; he self-published the book through Spirit Bird Press, an entity he created.

. . . .

On December 10, 2015, a federal judge granted Harvard’s motion for an injunction, stopping Elmore from advertising, selling, and distributing his book. Elmore had already sold over 900 copies of the book that cost him $36,000 to produce, had a deal with Amazon.com in place, and had media kits ready to promote his book.Maine Antique Digest reviewed the book in the April 2015 issue.

Elmore is fighting back on two fronts: he’s filed a countersuit in federal court and launched legal action in a state court in New Mexico. His countersuit alleges breach of contract, breach of covenant of good faith and fair dealing, tortious interference with contractual relations, conversion, and more.

. . . .

In an e-mail to M.A.D., Elmore states his case. “Here’s my take on the Permission to Photo agreement. First, that agreement is Harvard’s attempt to strip photographers of their copyright of their work. The intention of the agreement is for Harvard to avoid U.S. Federal Copyright law and for Harvard to assert itself between the photographer and his own copyright, thus placing itself above the law. Right now, Harvard acknowledges I own the copyright to my photos, returned in the ‘all rights’ letter, yet insists I can’t publish them. What else does copyright mean? I’m not denying I signed the agreement, and I would not have published without their returning to me in writing from the Board ‘all rights’ etc. and ‘recommending’ I publish elsewhere.

. . . .

Harvard’s lawyers claim the injunction is necessary. “It is extremely important to the Museum to have control over and approval of any published photographs of its collections, because the quality of those photographs and the way they are presented reflect directly on the Museum, and either enhance or degrade its reputation.” Harvard claims that Elmore’s photographs are blurry, washed out, or inadequately lighted.

Link to the rest at Maine Antique Digest

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