Copyright/Intellectual Property

Settlement Reached; Injunction Lifted, In Search of Nampeyo Is For Sale Again!

2 October 2016

From Free Nampeyo:

Harvard v. Elmore has settled out of court.   In Search of Nampeyo: The Early Years 1875 – 1892 is NOW FOR SALE AGAIN.  This award winning book documents for the first time that many early works of the great Hopi/Tewa potter Nampeyo are in the Keam Collection at the Peabody Museum at Harvard University.  Mr. Elmore arranges groups of pottery to demonstrate the evolution of Nampeyo’s early work.  Over 100 pieces of the pottery are depicted in high quality, full color photographs for the first time.  Mr. Elmore also discusses Nampeyo’s art in light of the Modernist art movement.

. . . .

As part of the settlement, Harvard gets to tip-in a page to each of the books.  Harvard’s page contains two paragraphs.  The first reads:

The photographs attributed to the “Peabody Museum” or the “Keam Collection” were published without the Peabody’s permission or review, in violation of the author’s contractual obligations. Many of the images have been altered by photo- editing software. The Peabody does not verify that the images are accurate representations of the objects in its collections.

Similarly, photograph caption information was not reviewed or approved by the Peabody and does not meet Museum standards.

The excellence of the photographs and the book are attested to by its many national awards and positive reviews.  The Peabody Museum chose not to do the work to supply Museum approved captions, though Mr. Elmore offered to include any and all corrections in an addendum.  The Peabody Museum Press and Peabody Museum staff chose not to review all the photographs; indeed considerable effort was expended to conceal any review processes from Mr. Elmore.

Their second paragraph reads:

The image on page 182 identified as a Peabody postcard is a screen shot from an old version of the Museum’s online database. This photograph was not approved for publication. The image in this book has been altered by the author to look like a historic postcard. The Peabody denies that any such postcard exists. 

This second point is puzzling. Harvard draws attention to an image that is not copyrightable because it is a simple snapshot of a prehistoric ceramic. It is in the public domain and may be freely used by anyone for any purpose. Mr. Elmore stated that the image was photographed from a postcard and in an early pleading, Harvard claimed to own a copy of this postcard: “Defendants [Elmore] also published at least two photographs misappropriated from the Peabody Museum’s own collections…in the Infringing Book is a large copy of an old postcard from the Peabody Museum”. Why does Harvard now claim that the postcard does not now exist?

Harvard states in their Press Release that they considered Mr. Elmore to have “doctored” photographs from their book Historic Hopi Ceramics to make them appear as drawings. Harvard refuses to acknowledge that they lost their copyright infringement claim against Mr. Elmore for these illustrations. Harvard continues to imply that Mr. Elmore improperly used their photographs when in fact he merely depicted Native American forms and designs in the public domain. These Native American pottery forms and designs cannot be copyrighted by Harvard or anyone else.

In its press release, Harvard claims that it never tried to copyright Native American designs. Yet, if the Native American forms and designs are removed from the photographs that Harvard claimed were infringed, the page would be blank. The Peabody Museum Press frequently publishes illustrations of pottery created from photographs produced by other museums. Here, they sued Mr. Elmore for a practice they engage in themselves.

According to the judge’s ruling, photographs in Historic Hopi Ceramics are protected only from verbatim copying. This ruling is also relevant to items on the the Peabody Museum’s website. The website does not offer the user any guidance as to which photographs on it are in the public domain and what uses of the public domain items depicted in these photographs are permissible. As a rule, objects created before 1896 would be in the public domain. Any photograph of old pottery on the Peabody Museum website is in the public domain if it is a mere snapshot showing the condition of the pottery. If there is minimal creative input to the photograph (stripping out the background, for instance) that photograph is only protected from verbatim copying. This means that it is perfectly legal to create and to publish a drawing of an older ceramic in a photograph on the Peabody Museum website. Here is a useful guide to expiration of copyright.

. . . .

Harvard withheld thousands of pages of discovery documents from Mr. Elmore until after the Hearing that resulted in the temporary injunction on In Search of Nampeyo. Information contained in these documents directly contradict statements made by Peabody Museum Press editor Joan O’Donnell and Director of Collections Kara Schneiderman while under oath. Some of their statements were used by Judge Brack as the basis for granting the temporary injunction. In particular, specific statements about the “irreparable harm” caused to Harvard by the publication of In Search of Nampeyo are refuted by evidence in the discovery documents, sworn affidavits, and later depositions of editor Joan O’Donnell and Director of Collections Kara Schneiderman.

The rulings against Mr. Elmore, issued the day before the settlement conference, were originally sealed. Part of the settlement is that these rulings be unsealed, and they are now public records. Harvard’s press release statement that “The Federal Court analyzed Elmore’s allegations at length and concluded they were false…” is open to question. This statement is refuted by the fact that Harvard lost its copyright claim and the fact that Mr. Elmore is now able to sell his book.

Link to the rest at Free Nampeyo

If you haven’t seen previous posts about this matter on The Passive Voice, you may want to go to the OP and read the history of Harvard’s bizarre and bullying behavior in this matter.

PG says this is all too typical of the actions of a large organization whose executives lurch into high dudgeon with low levels of legal information.

After a period of expensive posing via counsel and court filings, the executives finally accept counsel’s quiet advice that this would be a good case to settle.

The organization signs the settlement documents, creates a dust cloud of publicity to confuse the issue and conceal the fact that they should never have filed suit in the first place. The executives harrumph about the ridiculous American legal system and withdraw into their dens to replenish their dudgeon supplies.

Copyright Trolls Now Threatening College Students With Loss of Scholarship, Deportation

20 September 2016

From TechDirt:

In all of our coverage of copyright trolls, those rent-seeking underdwellers that fire off threat letters to those they suspect of copyright infringement with demands designed to extract cash without having to actually take anyone to court, it’s quite easy to become somewhat numb to the underhanded tactics they employ.

. . . .

But there is a special place in hell for copyright trolls who falsely inform students that failure to pay on receipt of threat letters, or who falsely inform foreign students that deportation could result from a failure to pay. According to at least one university in Canada, this is apparently a new favored tactic among some copyright trolls.

According to the copyright office at the University of Manitoba, mainly US-based rightsholders are writing on a regular basis to students demanding cash settlements for alleged infringement. Noting that the university forwards copyright infringement notices to students as they’re required to under the country’s ‘notice and notice‘ regime, the copyright office says some of the letters are “tantamount to extortion.”

In addition to cautioning over the potential for multi-million dollar lawsuits, some notice senders are stepping up their threats to suggest that students could lose their scholarships if fines aren’t paid. For visiting students, things become even more scary. According to the university’s copyright office, some porn producers have told foreign students that they could face deportation if an immediate cash settlement of hundreds of dollars is not forthcoming.

Just so everyone is clear, loss of scholarship and/or deportation is not a thing that can actually happen as a result of failure to pay a copyright threat letter.fd

Link to the rest at TechDirt

Amazon Books opens in San Diego

15 September 2016

From The San Diego Union-Tribune:

Amazon Books, the e-commerce giant’s seemingly incongruous brick-and-mortar venture, is now open at Westfield UTC mall in University City. The bookstore marks the company’s second formal foray into offline retail.

The San Diego shop premiered with little fanfare on Sept. 7, and is now open daily during regular mall hours. The 3,500 square-foot venue is located in the Sears wing of the upscale mall, next to the Tesla store and across from the Apple store.

The opening comes just 10 months after the first Amazon Books store debuted at University Village, a Seattle-area outdoor mall.

. . . .

The physical stores reinforce Amazon’s original mission as an online bookseller, said Miro Copic, marketing professor at San Diego State University.

Though smaller than the Seattle store, San Diego’s Amazon Books location is similar in style and function, featuring a distinctive exterior brick wall, as well as an interior crafted not only to sell a curated selection books, but also to heavily promote Amazon’s Prime subscription service and its electronic devices.

“We’re giving customers an additional way to discover books and devices they’ll love by integrating the benefits of offline and online shopping in a physical store,” company spokesperson Deborah Bass said of Amazon’s strategy.

Amazon Books shoppers will find a limited number of titles (roughly 3,500 books in total), with books picked based on a variety of truly Amazonian factors such as online customer reviews and sales data.

. . . .

Despite its name, the venue isn’t really a bookstore — at least not in the familiar sense. Here, books act as a vehicle to drive consumers deeper into the Amazon system, Copic said. Books, he said, are small but browsable, don’t have a shelf-life and, more importantly, can act as conversation starters with staffers, who can then teach customers about the benefits of Prime membership.

In fact, Prime, the company’s $99-per-year membership service that includes two-day shipping and streaming video, factors heavily into the store experience. Staffers and in-store signage remind patrons at every turn that Prime members often pay less than retail prices for books, a point that is reinforced with each smartphone price check.

“Amazon is making sure that it gets as broad a way possible to distribute the (overall) Amazon store to the consumer,” Copic said. “They want to use this as a showpiece location; to showcase new products and technologies, and real cutting-edge products that might not be their own.”

Link to the rest at San Diego Union-Tribune and thanks to Dave for the tip.

You can’t take pictures of the Eiffel Tower at night

10 September 2016

From Metro:

Not many people know this, but taking pictures of the iconic Eiffel Tower at night is illegal, and punishable by a massive fine.

The ban has been in place for a while now, but as France becomes more aggressive in its crack down on photo sharing, MEPs are joining forces in a bid to finally lift it.

. . . .

EU law allows members the choice to demand permission before people can share or sell photos of historic buildings protected by copyright.

Most countries abide by something called ‘freedom of panorama’. This allows people to take photographs and video footage of buildings, and other art works, that are permanently located in a public place.

But there are countries where the freedom is limited, like France, Italy and Denmark.

. . . .

Technically taking the picture is also illegal, but it’s the sharing part that will land you in hot water.

If you want to publish the image to social media you must gain permission from the ‘Société d’Exploitation de la Tour Eiffel’ (the Eiffel Tower’s operating company).

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

PG enjoyed Paris the last time he traveled there, but these sorts of rules drive him crazy.

In some European buildings – churches, palaces, etc. – taking photographs is prohibited. The rationale, if one is expressed, is that the entity earns money from selling postcard photos of the interior.

This automatically rubs PG the wrong way, particularly when he looks at the postcards, which are invariably terrible and look nothing like the photos PG would take of the building.

With civil disobedience in his heart, PG surreptitiously usually gets his photos without attracting the attention of the carabinieri, gendarmerie, peevish people who sit in uncomfortable chairs all day, etc. Once or twice he has been caught, but it soon becomes obvious to authority figures that he’s just another dumb American tourist who can’t read signs.

If, as protectors of these visual treasures are wont to explain, the works of __________ belong to the world, the world should be able to take a picture of them.

EU court backs Playboy in Dutch hyperlinks copyright case

9 September 2016

From the BBC:

The European Court of Justice has ruled in favour of Playboy in a long-running case over hyperlinks to copyrighted content.

The Dutch website Geenstijl, operated by GS Media, had posted links to an Australian site that was hosting photographs from Playboy.

But the court ruled GS Media had broken copyright rules, in part because it was motivated by profit.

GS Media said this was a blow to the “free internet”.

Playboy’s publisher, Sanoma, first brought the case against GS Media over links to photos of Dutch TV personality Britt Dekker, in 2011.

In April 2016, EU advocate general Melchior Wathelet sided with GS Media, arguing in his legal opinion to the court that posting the hyperlinks did not constitute copyright infringement.

. . . .

But now the court has ruled that GS Media’s posting of the links was a “communication to the public” – making it subject to the stated checks and balances regarding copyright.

It said the internet was “of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation” – but added that certain parties had a greater responsibility to avoid posting links to illegally published content.

“[W]hen hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published,” it said.

Link to the rest at the BBC and thanks to Jan for the tip.

EU Defends Proposals Granting Publishers New Rights

6 September 2016

From The Wall Street Journal:

The European Union’s digital chief on Monday defended upcoming legislative proposals by the bloc’s executive body to grant publishers new rights, a bid by the EU to help them better negotiate compensation from news aggregators such as Alphabet Inc.’s Google news search that post snippets of their articles on their website.

The European Commission is expected to propose new EU-wide rules that would hand news publishers “legal certainty and bargaining power” against online services using their content, according to previously reported internal documents. The new rules make up part of the bloc’s copyright proposals to be presented later this month.

The commission is putting forward the new draft rules “to have a balance in the value chain, not against anybody, not against American platforms, but in the interest of our creative sector and to stabilize their business cases,” said European Digital Commissioner Günther Oettinger at the Digital Life Design conference in Brussels. The event is sponsored by German publisher Hubert Burda Media.

Publishers have been pushing for what they call a more “level playing field” with internet companies in Europe as revenues plunge because more readers consume their articles online, oftentimes by dodging paywalls.

. . . .

The commission’s proposal would require member states to grant publishers additional rights over the online use of their articles that would last for 20 years after publication of the news stories. The bloc had initially been considering for the rights to expire after just one year following publication.

“If you want to stabilize the media sector, we need more than one year—so I think 20 years is the right, balanced proposal,” said Mr. Oettinger, stressing that news content is often relevant 10 to 15 years after it was published given that current events often connect back to events in the past.

Similar initiatives in Spain and Germany have failed to halt further financial erosion for publishers. Google shut down its news service in Spain while publishers in Germany eventually granted Google a free license to publish its content after traffic from the search engine sank.

Link to the rest at The Wall Street Journal (Link may expire)

PG says traditional news publishers need Google more than Google needs traditional news publishers.

France Passes Copyright Law Demanding Royalties For Every Image Search Engines Index Online

29 August 2016

From the Disruptive Competition Project:

[T]he French Parliament adopted at the end of June a little-noticed measure in the Freedom of Creation Act… with a very big potential impact: a new royalty for the indexing of images on the Internet in France.

Senators lobbied strongly for this measure, presented as a way to ensure the remuneration of plastic art, graphic art and photographic works’ rightsholders for images “used and communicated to the public without authorisation” by search engines and indexing services – while conveniently forgetting that search engines do not publish anything and that it is technologically easy to ensure that an image is not indexed.

How would this work? When an image is published online, the reproduction right and the right of communication to the public of this image shall be transferred to one or more collecting societies appointed by the French government. Online communication services “reproducing and communicating to the public images for search and indexing purposes” shall have to obtain a license from those collecting societies to index images legally. The license fee will either be based on the revenue accruing from the exploitation of the service or be a lump sum fee.

. . . .

[I]t is quite clear that “many online services and mobile apps, from search engines to creative commons models and Europeana” will be impacted, as stated by several digital associations, including CCIA. “Basic, everyday activities of online users such as posting, linking and embedding photos online, [will] be subject to a cloud of legal uncertainty”.

Moreover, the territorial scope of this measure is unclear. Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.

Even worse, there is no realistic way for collecting societies to redistribute the revenues from the license fees accurately and fairly to billions of rightsholders all over the world. The relevant collecting societies won’t attempt to contact all French rightsholders (when close to 70% of French citizens above 15 years old have a smartphone!), let alone all global rightsholders.  In practice, the money will be split between the relevant collecting societies and the few rightsholders affiliated to those societies, who – as we say in France – won the “Jackpot”.

Link to the rest at Disruptive Competition Project and thanks to Felix for the tip.

PG says this appears to be another attempt to extract money from Google and put it into the pockets of European civil servants.

Canelo searches for descendants of forgotten crime author

23 August 2016

From The Bookseller:

Canelo imprint Abandoned Bookshop is on a quest to locate the surviving relatives of crime author Clifton Robbins as it prepares to republish two of his books which have been out of print for over 80 years.

First published with “huge success” in the early 1930s by Ernest Benn, but unavailable since then, Dusty Death and The Man Without a Face are the first of five novels by Clifton Robbins featuring Clay Harrison, a London barrister-turned-detective, and his clerk, Henry.

According to the publisher “little is known” about Robbins. He appears to have been born in 1890, in London, studied at Cambridge and worked as a journalist. He wrote nine novels between 1931 and 1940, but none of the books were ever reprinted and he had nothing published after that date. Some records suggest Robbins died in 1944, others in 1964, but “numerous enquiries, requests and years of research have yet to reveal any living descendants,” the publisher said.

. . . .

Pack said all royalties from sales of the books will be kept aside in the hope that a relative of Clifton Robbins will come forward to claim them.

Link to the rest at The Bookseller

PG makes no claims to expertise in the history of UK copyright law, but he understands that, since The Copyright Act of 1911, copyright extends for at least the life of the author plus 50 years. In 1995, the term was extended to the life of the author plus 70 years for all works that were subject to copyright protection at that time.

Thus, if Mr. Robbins died in 1944, absent UK copyright twists of which PG is unaware, his books would appear to be out of copyright. However, if Mr. Robbins died in 1964, they would appear to still be under copyright protection, assuming the author, or author’s original publisher, did whatever was required to protect his books under UK copyright law.

PG will caution that there may be facts not included in the OP that would impact the presence or absence of copyright protection for Mr. Robbins’ books. PG will appreciate any comments from those who know more about UK copyright law than he does.

Posting a GIF gets agency exec a smackdown by Olympics brand police

16 August 2016

From Digiday:

As the world hurdles into week two of the Olympics, it pays to remain mindful of ongoing Rule 40 crackdowns by the International Olympic Committee.

Ian Schafer, CEO of digital agency Deep Focus, learned this the hard way when he became a target of the IOC’s ire this morning. The Olympic governing body disabled a tweet it claimed violated Rule 40 code, which is designed to prevent over-commercialization by unofficial sponsors.

His tweet, which was originally shared on August 14th, contained video of Olympic swimmer Katie Ledecky winning the gold medal in the women’s 800-meter freestyle final.

Schafer said he found a GIF of the NBC video on Reddit and converted it to a video before sharing it on his personal account. In the footage, Ledecky is shown beating her competitors by 11.4 seconds, completing the race with no one else in sight. The tweet had been retweeted more than 3,000 times (including by former Olympic gymnast Shannon Miller) before Twitter disabled the video and mandated that the content be removed.

. . . .

Twitter forwarded Schafer the email they received from the IOC listing the legal breaches this morning. “Your unauthorised display of the Material over the internet … constitutes a clear infringement of the IOC’s rights, in particular, intellectual property rights, and causes prejudice to the IOC and to the rights-holding broadcasters who have received exclusive authorization from the IOC to broadcast moving images of the Games,” the email states.

While Schafer said he understands the IOC’s concern over maintaining distribution and advertising rights over Olympic-related content, he is frustrated about the larger implications of Rule 40.

“[The IOC is] squashing engagement in favor of preserving the scarcity of its product,” he said. “From the average consumer’s perspective, we live in a world in which content isn’t scarce. It’s a digital world, product is infinite.”

Link to the rest at Digiday

Rule 40 is designed to maximize the exposure of official Olympic sponsors (who pay a lot of money to the International Olympic Committee) by prohibiting any promotion of non-official sponsors (including sponsors of individual athletes) during a period that includes the Olympic games (July 27 to August 24 this year).

Prohibited promotions include:

  • Any express or implied written/visual allusion to the Olympic Games.
  • Any use of the image of a Participant, taken during the Olympic Games, in combination with a company or brand.
  • Any reference to a Participant’s role in the Olympic Games, or to a Participant’s performances during the Olympic Games or during any past editions of the Games of the Olympiad or the Olympic Winter Games.
  • Any use of the “Olympic listed terms or expressions” alongside the Participant’s name or image.

“Olympic listed terms or expressions” include words like not only Olympic, Olympics, etc., but also Rio, Gold, Silver, Bronze, Effort, Performance, Challenge, Summer… and 2016.

Here’s more on Rule 40.

Using Song Lyrics in Your Novel (Spoiler Alert: You probably have to pay for it)

9 August 2016

From Sidebar Saturdays:

The creative spark for my third novel – LOSING FAITH – was a line from the Coldplay song Viva la Vida. I wanted to use it as the epigraph for the book, following my junior high school English teacher’s recommendation that an opening quote helps set the tone. But in high school, I never had to pay to insert my favorite Beatles’ lyric in a term paper. Unfortunately, that’s not how it works in the real world.

Whether you can legally use someone else’s copyrighted material in your book is a question of “Fair Use”. That applies to any copyrighted material – be it other novels, newspapers, television movies, or song lyrics. The statute can be found at 17 U.S.C. § 107.

. . . .

Song lyrics present a unique challenge for raising a Fair Use defense (and for the lawyers out there, it is an affirmative defense for which the defendant bears the burden of proof and not an element of a copyright claim to be established by the plaintiff) because the author is almost invariably using a large portion of the copyrighted work. Even though I only wanted to quote two lines of the Coldplay song, it was 28 words out of 288 – or nearly 10% of the entire song. On the other hand, my novel was nearly 100,000 words, so the Coldplay song was going to be a very small portion of my work.

As a legal matter, the likelihood of succeeding in court on a Fair Use defense depends on several factors, but the most important for authors of commercial fiction are the amount of the song you quote (less is obviously better), and the effect on the potential market for the copyrighted work (making people less likely to buy the song is obviously worse).

But the strength of your legal defense will undoubtedly take a back seat to the real world consideration that your publisher will likely not want to take a chance on being sued, and will refuse to publish if there’s any quotation of a song lyric — no matter how few words — without permission. And even if you self-publish, you should consider that going to court on the issue is probably a bad idea because “winning” a Fair Use claim can be a very expensive proposition.

. . . .

I thought my publisher would get the necessary permission, and pay the required royalty. Once again, I found out that isn’t how it works in the real world.

Standard publishing contracts, like mine, contain a representation by the author that the work is original and does not violate anyone’s copyright. That means that most publishers will require the author to secure permission on his or her own.

Link to the rest at Sidebar Saturdays and thanks to V.S. for the tip.

PG says the record companies tend to be pretty aggressive about enforcing copyrights and are not big believers in fair use.

Here’s a question – Does anyone know of a book that would have been substantially diminished if it had not quoted the lyrics from a song? If so, which book and why?

« Previous PageNext Page »