Copyright/Intellectual Property

The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?

14 October 2019

From Excess Copyright:

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law. It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. MaGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old?

. . . .

Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:

One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.

The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

Link to the rest at Excess Copyright

Explaining How an Author Terminated a Movie Studio’s Copyright to “Terminator”

11 October 2019

From Pirated Thoughts:

“I’ll be back” said the author of the original Terminator movie. Gale Ann Hurd, the author of the original Terminator film starring Arnold Schwarzenegger, has informed Skydance Media that it is terminating the grant of copyright to the work and seeks to reclaims the rights…but how?

Copyright law is complicated and the ins and outs can be incredibly confusing even to people who claim to specialize in the field. When someone creates a work (painting, screenplay, or photograph) they are deemed the owner of the work. There is one exception, if it is a work made-for-hire. A work made-for-hire comes in two forms: 1) you are paid by someone to create a work for them; or 2) the work is create in the normal course of business for an employer.

First, someone can be commissioned to create a work for someone else, like I am paying you to take a photograph of me and I will own the photograph. As long as the agreement is in writing before the photograph is taken, I own the rights instead of the photographer.

Second, if you create something in your everyday work life for your employer, they own it. For example, if I am a salaried reporter for the New York Times, the Times owns the copyright to any story that I may publish.

. . . .

If a work is a made-for-hire the original creator cannot ever regain the rights to the work. This is how many movie scripts and other stories are created. However, there is an exception.

If I independently create a work, meaning not as a work made-for-hire, I am the owner of the rights and I can do whatever I want with the work including transferring the rights to someone else. However, copyright law provides that after 35 years following publication and author can terminate the transfer and regain the rights to the original.

Gale Ann Hurd was the author of the Terminator film may back in the 80’s.

. . . .

In 1984, the Terminator film was published and here we are 35 years later and, according to the Hollywood Reporter, Hurd has informed the studio who now owns the film, Skydance Media, that is terminate the transfer of rights. Also terminated is the right to make derivative works such as sequels to the original Terminator.  The author must give two years before the termination takes effect and then all such exploitation of the work must cease in any way.

So what does this all mean for movie studios? Utter chaos perhaps as the loss of rights to make valuable sequels and prequels or just another settlement negotiation. Skydance will likely make Hurd a large monetary offer to retain the rights to the valuable franchise.

Link to the rest at Pirated Thoughts

And from The Future of Music Coalition:

Unlike most countries, the United States copyright law provides musicians and songwriters an opportunity to regain ownership of works that they transferred to outside entities, such as record labels and music publishers. Congress established this “second bite at the apple” for authors of creative works after a period of 35 years. “Termination of transfer” is not automatic, however, and there are certain steps creators must take to regain the rights to their works. This guide aims to shed more light on the process for the benefit of musicians and songwriters who are eligible to reclaim ownership of their creations.

As you read this guide, it is important to keep in mind that there are two copyrights in a piece of music: the composition copyright (think notes on paper) and the sound recording copyright (think sounds captured on tape or hard drive). Songwriters often enter agreements with publishers to “grant” their songwriting copyrights in exchange for up-front payment and/or the promise of circulation in the marketplace. Musicians (and bands) transfer their sound recordings to labels for similar reasons, including distribution, promotion and marketing. Authors of both copyrighted works can reclaim the copyrights to their original creations after a period of 35 years.

. . . .

Why do creators have this right?

It is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and “synch” opportunities. In addition, artists can now “go direct,” selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new uses.

Section 203 of the Copyright Act permits authors (songwriters and recording artists) to terminate deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing directly.

. . . .

Generally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes assignments (even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other “related” non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the trademark).

Link to the rest at The Future of Music Coalition

Amazon Intellectual Property Accelerator

6 October 2019

From dayOne, the Amazon Blog:

Today, we’re excited to launch Amazon Intellectual Property Accelerator, a new program that helps brands more quickly obtain intellectual property (IP) rights and brand protection in Amazon’s stores. We created IP Accelerator specifically with small and medium businesses in mind, and IP Accelerator helps these entrepreneurs by making it easier and more cost effective to protect their ideas.

Expert legal guidance is critical for businesses to protect their brands and avoid costly mistakes in the trademark filing process. IP Accelerator solves this challenge by connecting businesses with a curated network of trusted IP law firms that provide high quality trademark registration services at competitive rates to help brands secure a trademark. When businesses use these law firms to file trademark applications, Amazon provides their brands with accelerated access to brand protection in Amazon’s stores.

. . . .

Amazon has vetted the participating IP law firms for experience, expertise, and customer service, and all have agreed to competitive, pre-negotiated rates for the standard services involved in obtaining a trademark registration. These law firms help ease the trademark filing process, including researching a brand to see if anyone else is already using it and filing trademark applications to protect it. In addition to trademark applications, these firms can also help with additional IP needs such as copyright registrations, design patents, and broader IP protection strategies, making it easy for businesses to get tailored solutions for their brands.

“We’re very excited Amazon has a list of legal firms that can advise us in our trademark needs. We have struggled finding counsel for trademark specific questions as we are a small company and work with limited budgets. Having the peace of mind that Amazon has vetted these firms and negotiated pricing for us lets us focus on what matters—building our brand” said Sonali Nayak, owner of Indigo Paisley.

Using IP Accelerator takes the guesswork out of the trademark filing process. These law firms know the ins-and-outs of IP and can save businesses both money, and time—a proper, well drafted trademark application can significantly reduce the time required to secure a trademark registration. Amazon does not charge businesses to use IP Accelerator—they only pay their law firm for the work performed at the pre-negotiated rates.

. . . .

Because the participating law firms have been thoroughly vetted, when a business works with one of the law firms in IP Accelerator and a trademark has been filed on their behalf, they will be strong candidates for registration. As a result, Amazon will provide these brands with accelerated access to brand protections in Amazon’s stores, to better protect their brand months, or even years, before their trademark registration officially issues. Brands will benefit from automated brand protections, which proactively block bad listings from Amazon’s stores.

Link to the rest at dayOne, the Amazon Blog

Medical Influencers Show Up in False Advertising Case

4 October 2019

From Rebecca Tushnet’s 43(B)log:

Wright [Medical Technology] is a medical device developer, manufacturer, and distributor; its products include surgical plates and other instruments used to repair bones in the foot and ankle areas. Paragon, founded by three former high-level Wright employees, makes competing orthopedic plate systems and other devices used to repair bones in the foot and ankle. Trade secret claims ensued.

Also, Paragon allegedly promoted a “cadaver course” intended to teach surgeons to perform procedures of the foot and listed Dr. Christopher Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical influencer), as “anticipated course faculty” on the course’s promotional material. It also allegedly engaged in unfair competition by submitting a patent application that was nearly identical to a patent application that Wright had filed a month prior and by offering several KOLs equity or ownership interests in Paragon, leading to the KOLs using Paragon products in surgical procedures without disclosing their interests.

As to false advertising, Paragon argued that predictions (here, about who would teach the course) couldn’t be false advertising. But Wright alleged that there was never any consent for the use of the doctor’s name in advertising, and that Paragon was aware of this lack of consent, which was enough. (But that reasoning has to be incomplete: did Wright allege that Paragon never even asked the doctor to teach the course/that he turned them down before they started promoting it? If he had agreed to teach the course, even without specifically consenting to use of his name in advertising the course, it shouldn’t be false advertising, though the right of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) Anyway, the rule is that, while “[a]n honest or sincere statement of belief about a future event is not actionable,”…a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.”

Link to the rest at Rebecca Tushnet’s 43(B)log

PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.

If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.

The OP reminded PG of the tort claim called False Light. From Wikipedia:

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

    1. A publication by the defendant about the plaintiff;
    2. made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
    3. which places the Plaintiff in a false light; AND
    4. that would be highly offensive (i.e., embarrassing to reasonable persons).

Link to the rest at Wikipedia

The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.

To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.

Intellectual property in Outer Space: still in the twilight zone

30 September 2019

From The IP Kat:

The commercialisation of activities in outer space is booming. Space launches by private actors are skyrocketing (I know: terrible pun), and space tourism is expected to be an industry in full swing soon.

This change in the landscape of outer space raises the question whether intellectual property policy is on top of things in this area. A report on this question published last month by University of Exeter researchers . . . suggests that intellectual property policy lags behind the space industry, to the extent that it is likely to be a barrier for innovation and growth in the sector.

. . . .

The existing regulatory regime at the national level is built primarily upon the international legal framework developed in the 1960s-1970s, when the government had a monopoly over space-related technological capabilities. With the rapid increase in private commercial space activities, these traditional legal frameworks may not be well equipped to serve the flourishing of space technology as new business opportunities arise and diversify.

The privatization of space activities puts into bas relief the application of intellectual property rights in outer space, as organizations are keen to safeguard costly commercial enterprises. This issue was less pressing in the past for two main reasons. First, the commercial implications of outer space exploration were not as well-defined as they are today. Second, as space exploration was handled by state actors collaborating with each other, governments were able to settle issues around the subsistence, ownership and infringement of intellectual property by using inter-governmental agreements tailored to their needs . . . . These agreements serve to fill gaps existing at the intersection between space regulations and intellectual property laws.

Inter-governmental agreements are not available to private organizations, who can only manoeuvre within the framework of national law (and international regulations when they have been adequately implemented at national level). And, unfortunately, for private actors, there is currently no international agreement harmonizing national policies on what or how intellectual property rights apply in relation to assets created in or extracted from space. This is particularly problematic, considering that the space industry inherently involves cross-border activities.

. . . .

International space law (as formulated across various space law agreements and treaties) is premised on the idea that outer space is what we could call a ‘non-jurisdiction’; it belongs to no individual state nor can it  be annexed, owned, or colonised directly or indirectly by any one country. By contrast, intellectual property rights are territorial in nature and are defined by jurisdictional boundaries.

Moreover, intellectual property rights are inherently based on the notion of appropriation. Intellectual property rights confer legal titles, often in the form of ownership,  excluding others from accessing or using the relevant protected subject-matter. By contrast, international space law provides that outer space and its content may not be appropriated by anyone.

Link to the rest at The IP Kat

Stan Lee’s Daughter Sues to Reclaim His Intellectual Property

29 September 2019
Comments Off on Stan Lee’s Daughter Sues to Reclaim His Intellectual Property

From The Hollywood Reporter:

Stan Lee’s daughter J.C. is picking up an intellectual property battle started near the end of her father’s life, while broadening its horizons to examine nearly two decades of dealmaking for the comic book legend. On Thursday, as the trustee for the Lee Family Survivor’s Trust, she filed suit in California federal court against POW! Entertainment.

. . . .

Before Stan Lee passed, he had brought a $1 billion suit against POW. That complaint detailed Lee’s deteriorating medical condition and alleged that POW executives took advantage by either inducing him to sign documents under fraudulent pretenses or forging his signature. The suit sought to reclaim name and likeness rights, while also objecting to the transfer of assets to Hong Kong-based Camsing International.

That lawsuit was dropped, and a press release conveyed the news along with an alleged statement from Lee, who was attributed as saying, “The whole thing has been confusing to everyone, including myself and the fans, but I am now happy to be surrounded by those who want the best for me. I am thrilled to put the lawsuit behind me, get back to business with my friends and colleagues at POW! and launch the next wave of amazing characters and stories!”

The latest lawsuit revives the battle but also takes a trip back to the 1990s when he was fired from Marvel after the now-Disney-owned division filed for Chapter 11 bankruptcy. Back then, Lee took his rights and set up a namesake company. Lee hoped to ride the dot-com boom before a financial collapse intervened. Eventually, Lee would make amends with Marvel, but not before co-establishing POW as the company that would possess his intellectual property.

. . . .

“When Stan Lee died in November 2017, his daughter, as his only heir and Trustee of his Estate, gathered a forensic team of lawyers and accountants to investigate the facts surrounding the actions of Stan Lee’s supposed partners with whom Lee had stopped communicating during the last year of his life,” continues the complaint. “In so doing, it was learned the extent to which the rights to Stan Lee’s intellectual property had been looted, muddied and entangled by POW! and a range of bad actors enabled by POW!.

Link to the rest at The Hollywood Reporter

Copyright and Artificial Intelligence

29 September 2019

From Plagiarism Today:

Depending on who you talk to, true artificial intelligence can be right around the corner or an impossible pipe dream that humanity will never reach.

However, there is one unavoidable truth. Computers are increasingly doing more and more of the heavy lifting when it comes to creating new content. Just in the consumer market we’ve gone from basic word processors to ones with spell check and now ones that can suggest sentences, correct grammar and make major changes, all without user input.

It’s a similar situation with photography where modern cameras, even the ones in phones, take a lot of the work out of setting up a shot and handle things like focus, light balancing and more. Humans are becoming less and less involved in creating art and computers are taking more and more of the burden from us.

But as that burden is removed and we inch closer and closer to machines being able to create fully independently from us, there is a serious question: Who, if anyone, owns the works they produce?

. . . .

Today, this question about AI and copyright is more of a hypothetical. It’s something to be explored by academics and science fiction authors. The reason is that we just don’t have artificial intelligence that’s able to truly create art independent from its human overlords.

The fact that I use predictive text on my phone or the automatic setting on my camera doesn’t mean I’m not the copyright holder in the things I write and the images I take. This is something codified directly into the law itself with 17 U.S. Code § 102 saying that works that qualify for copyright protection do so whether they are made “directly or with the aid of a machine or device.”

Copyright is awarded to works of human creativity that are fixed into a tangible medium of expression. However, the creativity requirement is very low and the work only need to feature a “spark” of creativity to qualify.

As such, any work created by an AI in 2019 would likely be treated as a creative work by the person that directed the AI to make it. If you select a bunch of paintings and tell the AI to make a new one based upon them, the selection of the paintings is, of itself, a creative act, the AI is just a tool to interpret that creativity.

To that end, the AI is little more than a more complicated autocorrect or autofocus in that it’s a tool for interpreting human creativity and aiding in the creation of a new work.

However, this doesn’t mean that there aren’t some interesting questions in 2019. Take, for example, the following scenarios:

Heliograf: Since at least 2017, the Washington Post has been using Heliograf, an AI reporter, to cover sporting events that they can’t send a human reporter to. While humans are prompting it to write, all they are providing is factual information about the game including box scores and other data. The problem is that facts cannot be protected by copyright, even when compiled at great effort.

Obvious: Obvious is a group of artists and AI researchers that is using AI named Generative Adversarial Networks (GAN) to generate art. According to the collective, GAN operates without human interference and attempts to create artwork based upon images in its library (its unclear if Obvious chooses the images for GAN). The result is artwork that, while maybe not to everyone’s taste, has sold relatively well with one recent work selling for €10,000 ($12,000).

Link to the rest at Plagiarism Today

Google Refuses to Pay for News Links in France

25 September 2019

From The Wall Street Journal:

Google said it would refuse to pay for licenses for previews of French news articles when the European Union’s new copyright directive goes into effect here next month, the first concrete signal for how the Alphabet Inc. unit plans to implement the divisive measure.

Rather than paying, Google said it would show only headlines in news results, as permitted under the new copyright law, unless a publication gives Google additional permission to show preview text and thumbnail images for free.

“We don’t pay for links to be included in search results. Doing so would not only skew the results we might provide but it would undermine the trust that users have in search and Google,” Richard Gingras, Google’s vice president of news, said in a conference call with reporters.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

PG suggests that the European newspapers have more influence over European Union politicians than Google does.

PG further suggests that Google understands more about what drives click-throughs than the European newspaper executives do. PG further suggests that the newspapers will cave before Google does.

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