The U.S. Supreme Court on Monday declined to take up the long-running copyright battle over Led Zeppelin’s “Stairway to Heaven,” leaving in place a ruling that rejected infringement allegations over the 1971 song.
The justices denied a petition aimed at reviving the case, ending six years of litigation over claims that the song’s writers, Jimmy Page and Robert Plant, plagiarized the song’s iconic intro from the 1968 song “Taurus” by the group Spirit.
The decision follows a March victory for the group in which the 9th Circuit Court of Appeals upheld a jury verdict finding the song did not infringe on “Taurus.”
Journalist Michael Skidmore filed the suit in 2014, on behalf of the estate of Randy Wolfe, the late Spirit frontman. After losing at trial, Skidmore appealed to the 9th Circuit.
. . . .
The appeals court’s en banc ruling marked a win for the music industry, which had felt besieged by frivolous copyright suits since the “Blurred Lines” trial in 2015. The appeals court overturned the so-called “inverse ratio rule,” a standard that set a lower bar for similarity if plaintiffs could prove a higher level of access to the infringed work.
The 9th Circuit also made it harder to claim infringement based on a “selection and arrangement” of unprotectable musical elements. Finally, the ruling expressed skepticism about claims based on just a handful of notes.
PG admits that the first little bit of each song do sound quite similar.
But, as the OP describes, these are only a “handful of notes” and examining what is really going on in the two introductory portions shows that there are some significant differences. Once past the intro, the two songs are much different.
Additionally this particular pattern of descending notes also appears in more than a few other musical pieces which predate the creation of both songs. That fact alone might indicate that the plaintiff’s copyright claims lack much strength.
PG writing “It was a dark and stormy night” doesn’t provide any substantial basis for PG claiming a copyright to the phrase. “It was a dark and stormy night in Des Moines” isn’t really much different.
Specifically, the court found that eight measures of the two songs were similar. However, Stairway to Heaven is much, much longer than eight measures and the plaintiff had only registered a copyright for a single page of sheet music.
Here is what the the copyright infringement claim was based upon, taken from the copyright filing made by the Plaintiff and included in the Court’s opinion:
Here’s a comparison between the original and the Led Zeppelin version, also from the court’s opinion:
The top two lines are from Taurus, the alleged copyright-protected original, and the bottom two lines are from the introduction to Stairway to Heaven.
The court opinion included the following portion of the testimony of a music expert hired by the the defendants:
PG notes that when a judge or panel of judges quote a principal expert witness for the defendant, the plaintiff may conclude that she/he/they will not be happy with the court’s decision.
In addition to almost everyone else, judges and lawyers commonly use analogies to describe something complex that is difficult to accurately describe in words. Courts issue their decisions using words and sentences, not musical compositions.
In this respect, Dr. Ferrara, the expert testifying on behalf of the defendants in the pull-quote, earned his almost-certainly large fee by providing analogies that even a tone-deaf judge could understand.
“Crab” and “absent” both contain the letters “ab” in sequence, but the entire words are completely different.
“Senator” and “treason” each contain exactly the same letters, but the order in which the letters appear in the two words is different and the meaning of the two words are not at all the same.
Perfectly lovely analogies that are far easier for 99% of law school graduates to understand than “descending notes of a chromatic musical scale” and “a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios.”
Here’s a video that includes recordings of the melodies created by the plaintiff and the allegedly infringing portion of the defendants’ song.
Since some visitors had problems with an embedded PDF PG included in a recent post, PG will link to a copy of the 9th Circuit Court of Appeals opinion which the US Supreme Court decided to let stand and decline to review.
The opinion is 73 pages long, so you will need to read it to understand the decision and the copyright principles involved. PG’s fluffy little summary is not an adequate substitute for reviewing the whole thing.
However, since you are not facing a final exam in copyright law, you can do whatever you like without receiving a bad grade.
The estate of Sir Arthur Conan Doyle has sued Netflix over its upcoming film Enola Holmes, arguing that the movie’s depiction of public domain character Sherlock Holmes having emotions and respecting women violates Doyle’s copyright.
Enola Holmes is based on a series of novels by Nancy Springer starring a newly created teenage sister of the famous detective. They feature many elements from Doyle’s Sherlock Holmes stories, and most of these elements aren’t covered by copyright, thanks to a series of court rulings in the early 2010s. Details from 10 stories, however, are still owned by Doyle’s estate. The estate argues that Springer’s books — and by extension Netflix’s adaptation — draw key elements from those stories. It’s suing not only Netflix, but Springer, her publisher Penguin Random House, and the film’s production company for unspecified financial damages.
. . . .
The Doyle estate made a similar argument five years ago in a lawsuit against Miramax for its film Mr. Holmes — among other things, it claimed Mr. Holmes included plot details about Holmes’ retirement, which only happens in the final stories. But its new argument is a lot more abstract: basically, if this movie wants Sherlock Holmes to express emotions, its creators need to pay up.
The complaint alleges that in the public domain stories, Holmes is famously “aloof and unemotional.” Then, that changed because of his creator’s life experiences:
After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.
Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.
He also starts liking dogs, which a judge actually has described as a potentially protected trait.
The Hollywood Reporter notes that Doyle’s estate fought the partial public domain ruling by unsuccessfully arguing that Sherlock Holmes slowly became a complex figure who needed full copyright protection to remain coherent. The estate claimed that losing copyright to some of the stories gave Holmes “multiple personalities.”
So the estate now says Springer and Netflix are basing Enola Holmes on the personality that’s still protected. And the new personality’s key traits include relating to other people and reacting with “warmth and emotion” to a female character who happens to be his immediate family — in other words, some of the most basic updates any author might make to a century-old character.
PG was about to write some comments about showbiz lawsuits and California courts and lawyers.
(PG is a long-time member of The State Bar of California and one of more than 266,000 attorneys licensed to practice law in California, although PG no longer lives in that state. He will attest that there are some very good lawyers in California, there are some very inept lawyers in California and there are some very crazy lawyers in California.)
However, when PG examined the complaint in the Conan Doyle lawsuit, he was surprised to discover that it was filed in the United States District Court for the District of New Mexico by a law firm that appears to be comprised of five attorneys located in Santa Fe, New Mexico, population: 85,000.
There is definitely an interesting story about how a UK corporation created by the heirs of Arthur Conan Doyle connected with a five-attorney firm in Santa Fe.
As mentioned, Plaintiff is a UK corporation.
a Delaware corporation,
a UK corporation,
limited liabilities formed in
two residents of London
a resident of Florida.
As it happens, the Santiago E. Campos Federal Courthouse is located in Santa Fe, likely a short walk from the offices of the attorneys representing the Conan Doyle Estate and not a short walk for any of the parties to the lawsuit or their preferred defense attorneys.
There are a total of five permanent Federal District Court judges and one temporary District Court judge in New Mexico. For comparison, California has 60 permanent Federal District Court Judge positions, New York has 52. (per https://www.uscourts.gov/)
PG doesn’t know how busy these New Mexico judges are, but expects none of them wished for a complex copyright lawsuit involving parties from all over the place to land on her/his docket.
Most Federal District Judges in New Mexico and elsewhere are current on the rules of criminal procedure and how to try a drug case. Copyright infringement? Not so much.
PG is pretty certain there are not enough qualified intellectual property trial attorneys with offices in Santa Fe to represent each of the defendants.
The Santa Fe airport boasts daily flights to to Denver, Dallas and Phoenix, so IP trial attorneys located in Los Angeles, New York or London won’t have an easy time getting to court.
PG hasn’t considered the question of federal jurisdiction and venue for a lawsuit involving as many parties from as many places as the Conan Doyle suit includes, but suspects that New Mexico federal courts could probably hear this case.
This case was filed at the end of June. PG hasn’t checked the court records to see if all the defendants have been served with papers and what has happened since the suit was filed.
However, PG will predict that the first response of the defendants has been/will be to strenuously attempt to have the case transferred to someplace with a lot more qualified attorneys and much better air access than Santa Fe.
He also suspects that a more than a few of the defendants had no idea where Santa Fe was when they were served with court papers.
PG is certain that this will be an entertaining (at least for him) case to follow.
[Let PG know in the comments or via the Contact Link if you are not seeing an embedded copy of the Complaint filed in this case and want to see it. When PG tested this post, he could usually see the PDF, but sometimes received an error message.]
hen Covid-19 struck, hundreds of millions of students were suddenly stranded at home without access to teachers or libraries. UNESCO reported that in April, 90 percent of the world’s enrolled students had been adversely affected by the pandemic. In response, the Internet Archive’s Open Library announced the National Emergency Library, a temporary program suspending limits on the number of patrons who could borrow its digital books simultaneously. The Open Library lends at no charge about 4 million digital books, 2.5 million of which are in the public domain, and 1.4 million of which may be under copyright and subject to lending restrictions. (This is roughly equivalent to a medium-sized city library; the New York Public Library, by comparison, holds 21.9 million books and printed materials and 1.78 million e-books, according to 2016 figures from the American Library Association.) But the National Emergency Library wound up creating an emergency of its own—for the future of libraries.
Brewster Kahle, the Internet Archive’s founder and digital librarian, wrote in March that the National Emergency Library would ensure “that students will have access to assigned readings and library materials…for the remainder of the US academic calendar.” He acknowledged that authors and publishers would also be harmed by the pandemic, urged those in a position to buy books to do so, and offered authors a form for removing their own books from the program, if they chose.
More than 100 libraries, archives, and other institutions signed on to a statement of support for the program, including MIT, Penn State, Emory University, the Boston Public Library, Middlebury College, Amherst College, George Washington University, the Claremont Colleges Library, and the Greater Western Library Alliance. Writing in The New Yorker, Harvard history professor and author Jill Lepore joined many media observers in praising the National Emergency Library as “a gift to readers everywhere.”
A number of other authors, however, took to Twitter to complain.
“Guys. Not helpful,” tweeted novelist Neil Gaiman.
“They scan books illegally and put them online. It’s not a library,” novelist Colson Whitehead tweeted in March. (I wrote last week to ask Whitehead what laws he thought were being broken, or whether he’d since altered his views on this matter, and he declined to comment.)
On June 1, Whitehead’s publisher, Penguin Random House, together with fellow megapublishers Hachette, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive alleging “mass copyright infringement.” The Internet Archive closed the National Emergency Library on June 16, citing the lawsuit and calling for the publishers to stand down. But the plaintiffs are continuing to press their claims, and are now seeking to close the whole Open Library permanently.
The trial is set for next year in federal court, with initial disclosures for discovery scheduled to take place next week. The publishers’ “prayer for relief” seeks to destroy the Open Library’s existing books, and to soak the Internet Archive for a lot of money; in their response, the Archive is looking to have its opponents’ claims denied in full, its legal costs paid, and “such other and further relief as the Court deems just and equitable.” But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book.
The Internet Archive is far more than the Open Library; it’s a nonprofit institution that has become a cornerstone of archival activity throughout the world. Brewster Kahle is an Internet pioneer who was writing about the importance of preserving the digital commons in 1996. He built the Wayback Machine, without which an incalculable amount of the early Web would have been lost for good. The Internet Archive has performed pioneering work in developing public search tools for its own vast collections, such as the television news archive, which researchers and journalists like me use on an almost daily basis in order to contextualize and interpret political reporting. These resources are unique and irreplaceable.
The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video. I am leaving a lot out about its groundbreaking work in making scholarly materials more accessible, its projects to expand books to the print-disabled—too many undertakings and achievements to count.
For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. Archiving is not in the purview or even the interests of big publishers, who indeed have an incentive to encourage the continuing need to buy.
. . . .
But in a healthy society, the need for authors and artists to be compensated fairly is balanced against the need to preserve a rich and robust public commons for the benefit of the culture as a whole. Publishers are stewards of the right of authors to make a fair living; librarians are stewards of cultural posterity. Brewster Kahle, and the Internet Archive, are librarians, and the Internet Archive is a new kind of library.
. . . .
“I’m a librarian!” [Kahle] told me, back then. “Libraries have had a long history of dealing with authoritarian organizations demanding reader records—just, who’s read what—and this has led to people being rounded up and killed.”
Now Kahle finds himself on the other side of a lawsuit. The key issue in this one is the as-yet-untested legal theory of Controlled Digital Lending (CDL), which the Internet Archive and partner libraries have been working out over the last few years, in order to deal fairly with the new question of lending digitized books within the parameters of existing copyright law. CDL was designed to mirror the age-old library practice of (1) buying or otherwise acquiring a physical book, and (2) loaning it out to one patron at a time.
Like a traditional library, the Internet Archive buys or accepts donations of physical books. The archive scans its physical books, making one digital copy available for each physical book it owns. The digitized copies are then loaned out for a limited period, like a traditional library loan. The physical books from which the scans were made are stored and do not circulate, a practice known as “own-to-loan.”
Harvard copyright scholar and lawyer Kyle Courtney has explained this reasoning very clearly. “Libraries do not need permission or a license to loan those books that they have purchased or acquired,” he said at a recent conference. “Copyright law covers those exact issues.… Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself.”
The for-profit publishers in the lawsuit, however, do not care for this idea. What they allege in the complaint is this: “Without any license or any payment to authors or publishers, IA [the Internet Archive] scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”
What this ominous description fails to acknowledge is that all libraries that lend e-books “distribute verbatim digital copies of the books in whole via public-facing websites.” Yet the publishers claim later in the same document that they have no beef with regular libraries. They love libraries, they say (“Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications”), and are “in partnership” with them: “This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers.”
The real issue emerges here: The words “license ebooks” are the most important ones in the whole lawsuit.
Publishers approve of libraries paying for e-book licenses because they’re temporary, just like your right to watch a movie on Netflix is temporary and can evaporate at any moment. In the same way, publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever.
Their argument also hinges on the notion that it’s illegal to scan a book that you own. Note that this is what’s being claimed in the complaint: that the books are “illegally scanned,” as Whitehead tweeted back in March. It’s not just the distribution of “pirated” copies they’re trying to prevent. It’s doing as you wish with your own property.
This runs deeper than the question of digital format. NYU law professor Jason Schultz, co-author of The End of Ownership, explained it in an e-mail: “The key here is that our law and cultures have always distinguished between owning something and temporarily purchasing access to something. Most people know the difference between owning a home and renting one, or owning a tuxedo or renting one. We also know this with most media, for example the difference between buying a copy of a film on DVD and going to see it in the theater.”
. . . .
As Schultz elaborated: “For each physical book that a library owns, it can lend it out to whomever it chooses for as long as it wants and the copyright owner has no say in how such lending happens. But here, because digital technology is involved, the publishers are asserting that they can control how/when/where/why libraries lend out digital copies.… In other words, they want to change the rules in their favor and take away one of the most cherished and valuable contributions that libraries make to society—allowing members of the public to read for free from the library’s collection.”
. . . .
“Libraries buy, preserve, and lend,” he said. “That’s been the model forever. [Libraries] actually supply about 20 percent of the revenue to the publishing industry. But if they cannot buy, preserve, and lend—if all they become is a redistributor, a Netflix for books—my God, we have a society that can get really out of control. Because if a publisher maintains control over every reading event, who’s allowed to read it, when are they allowed to read it, if they’re allowed to read it, and be able to prevent anybody, or particular regions, from being able to see something, we are in George Orwell world.
“What libraries do, is they buy, preserve, and lend. What this lawsuit is about—they’re saying the libraries cannot buy, they cannot preserve, and they cannot lend.”
Kust when you thought it was safe to step out in your new Vans National Geographic sneakers without fear of being out of date, the Dr. Seuss empire is ready to put you on a different path with a new collection licensed to Skechers.
As the Seussians like to say, the Skechers people are “stepping into the iconic world” of Theodor Geisel. No need to tiptoe around the obvious metaphors, right?
The characters laced up in the new line of Skechers are from The Cat in the Hat. And, like the National Geographic kicks at Vans, these Seuss slippers are made for both children and adults who hope that walking in whimsy might offer traction on the slippery slope that is 2020.
In describing Skechers’ rationale, the company’s president, Michael Greenberg, starts with the obvious, saying in a prepared statement, “Dr. Seuss is one of the world’s biggest cultural icons—read, shared and celebrated by millions since the 1950s.”
Greenberg gets closer to the actual issue, then, saying, “We’ve taken our most popular footwear styles and infused them with Dr. Seuss’s one-of-a-kind designs, delivering the unique charm that only he [the late Geisel] can offer—even creating matching pairs that parents and their kids can wear together.”
. . . .
And as it turns out, branding specialists are fond of shoes not least because, as Emma Bedford wrote at Statistica in July, the American consumer averages US$392 on footwear over the course of a year. The biggest age demographic for the popularity of shoes, the report tells us, is 35 to 44 years. Much of the trend is concentrated across the age breaks of 25 to 54—lots of those folks old enough to know Seuss, right?
As we know, Seuss Enterprises is an expansive juggernaut of rights and licensing, most recently, as we reported, going into Slovenia, Albania, and Germany with new and/or broadened licensing agreements.
PG noted that the publisher of The Cat in the Hat, Penguin Random House, may not be the one doing the licensing (and receiving the licensing fees). Per the OP, licensing is conducted by “Seuss Enterprises” (formally, Dr. Seuss Enterprises, L.P.)
Per the Dr. Seuss Enterprises, L.P. link above:
Dr. Seuss Enterprises is a leading children’s entertainment company committed to care taking Theodor Seuss Geisel’s (Dr. Seuss) legacy, ensuring that each generation can experience the amazing world of Dr. Seuss. Established in 1993 and based in San Diego, CA, the company’s global portfolio complements the roster of iconic Dr. Seuss books, and includes films, TV shows, stage productions, exhibitions, digital media, licensed merchandise, and other strategic partnerships. Ted Geisel once said he never wanted to license his characters to anyone who would “round out the edges” – a guiding principle at Dr. Seuss Enterprises. For more information about Dr. Seuss and his works, visit seussville.com.
Addison Cain was living in Kyoto, volunteering at a shrine and studying indigenous Japanese religion. She was supposed to be working on a scholarly book about her research, but started writing intensely erotic Batman fan fiction instead.
It happened almost by accident. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., under a different name — was three years out of college, alone abroad with a lot of time on her hands. Her command of Japanese was halting, and English titles in bookstores were wildly expensive. So Ms. Cain started reading things she could find for free online, and soon discovered fanfic — stories by amateurs that borrow characters and plots from established pop-cultural franchises.
Ms. Cain began devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She decided to write some of her own, featuring Batman’s nemesis Bane as a sexy antihero, and posted them for free online. She quickly developed a fan base, becoming something of a star in her sub-subgenre.
A few years later, she was living in Arlington, Va., and working as a bartender when she began to wonder if she could turn her hobby into a business. Her husband and parents discouraged her from pursuing something so impractical. Agents were equally dismissive, rejecting or ignoring Ms. Cain’s queries for more than a year. Then, a fellow writer helped Ms. Cain send a manuscript to Blushing Books, a small publishing house in Charlottesville. An editor read it overnight and sent her a contract the next day.
In the spring of 2016, she published “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth where most of humanity has died from a plague and survivors live under a dome, divided into a wolfpack-like hierarchy of dominant Alphas, neutral Betas and submissive Omegas. A powerful, brutish Alpha named Shepherd takes an Omega woman named Claire captive, and they engage in rough, wolfish sex.
Ms. Cain’s fans posted nearly 100 positive reviews on Amazon, enough to get her some visibility. “Unapologetically raw and deliciously filthy,” read one glowing blurb. The debut was a hit. She rushed out several more titles, and the series grossed some $370,000, according to her publisher.
For the next two years, Ms. Cain published at breakneck speed, producing a novel every few months by repurposing her older fan fiction, keeping her books in the algorithmic sweet spot of Amazon’s new releases and turning herself into a recognizable brand. “Dip your toes into the erotica pool,” she said on a 2016 sci-fi and fantasy podcast. “There’s nothing to do here but make money.”
Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage.
. . . .
Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately. Ms. Cain’s readers flocked to her defense. “This is a rip off of Addison Cain,” one irate reader wrote on Goodreads. “So disappointed in this author and I hope Mrs. Cain seeks legal charges against you for stealing her work! Shame on you!”
It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.
The dispute between Ms. Cain and Ms. Ellis is a kink-laden microcosm of tactics at play throughout the fanfic industry. As the genre commercializes, authors aggressively defend their livelihoods, sometimes using a 1998 law, the Digital Millennium Copyright Act, to get online retailers to remove competitors’ books. When making a claim, a creator must have a “good faith belief” that her ownership of the work in question has been infringed.
But what does that mean when the ultimate source material is a crowdsourced collective? The question has members of the Omegaverse community choosing sides between Ms. Cain and Ms. Ellis — as will a federal judge in Virginia, who is considering whether the allegations, and the consequences, merit a payout of more than a million dollars.
. . . .
While some traditional authors have derided fan fiction writers as creative parasites, there isn’t really any way to stop them. Such works are legal as long as writers post them for free and don’t try to sell stories based on copyrighted material.
But too much money was at stake for the genre to remain amateur forever. E L James’s blockbuster series “Fifty Shades of Grey,” which sold more than 150 million copies, started as fanfic based on Stephenie Meyer’s “Twilight” vampire saga. By swapping out copyrighted characters for nominally original ones — a practice known as “filing off the serial numbers” — fanfic writers like Ms. James, Christina Lauren and the cheekily named Tara Sue Me have leapfrogged into for-profit publishing.
As more fan fiction writers cross over into commercial publishing, turf wars have erupted. “Fan fiction made authors and publishers realize there was a thriving market for this stuff,” said Rebecca Tushnet, a copyright expert at Harvard Law School. “There’s much more of it, so there’s more opportunity for conflict.”
. . . .
The appetite for such tales is large and growing. In the past decade, more than 70,000 stories set in the Omegaverse have been published on the fan fiction site Archive of Our Own. As it became more popular, the Omegaverse transcended individual fandoms and became an established genre on its own.
Writers began publishing Omegaverse stories with original characters and settings, and authors started to publish them for profit. On Amazon, there are hundreds of novels for sale, including titles like “Pregnant Rock Star Omega,” “Wolf Spirit: A Reverse Harem Omegaverse Romance” and “Some Bunny to Love: An M/M MPreg Shifter Romance,” an improbable tale involving an Alpha male who can transform into a rabbit.
This was the thriving commercial backdrop to Ms. Cain’s allegation that Ms. Ellis stole her material. Ms. Ellis thought that the claim was absurd — and was prepared to say so in court.
. . . .
One day last spring, Ms. Ellis met me for coffee at a hotel near Paddington Station. She doesn’t seem like someone who writes dark, edgy, sometimes violent erotica. She’s young, cheerful, and works in education in London, which is one of the reasons she declines to publish under her real name. Most days, she gets up at four in the morning to write, then heads to the school where she works. On her Amazon author page, she describes herself as a “cat mama” who loves “sexual tension that jumps off the page.”
Ms. Ellis said she got into fan fiction in 2006. She read stories set in the Harry Potter universe at first, then moved on to other fandoms, including one for the BBC’s “Sherlock,” starring Benedict Cumberbatch, that introduced her to the Omegaverse. The genre was unlike anything else she’d encountered. She began dabbling in her own original writing, and in late 2017 began working on the “Myth of Omega” series.
. . . .
“You have to make sure you use the tropes of Omegaverse in order to be recognized by fans of the genre,” Ms. Ellis said. “Crave to Conquer” and its sequel, “Crave to Capture,” were published in early 2018 by Quill Ink Books, a London company she founded. Readers gave the series glowing reviews on Goodreads and Amazon, calling it “sensational new Omegaverse!” and the “best Omega yet.”
In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.
“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”
A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.
Ms. Ellis decided to sue. “Everything would have been in question, my integrity would have been questioned, my ability to write and tell stories — all of that would have been under threat if I didn’t challenge these claims,” she said.
In the fall of 2018, Quill Ink filed against Blushing Books and Ms. Cain in federal court in Oklahoma, where Ms. Ellis’s digital distributor is based, seeking $1.25 million in damages for defamation, interfering with Ms. Ellis’s career, and for filing false copyright infringement notices. In the suit, Quill’s lawyers argued that “no one owns the ‘omegaverse’ or the various tropes that define ‘omegaverse.’”
Ms. Ellis’s lawyers thought they had a strong position. But they struggled to find a prior case that addressed whether fan fiction tropes could be protected by copyright.
“We were looking at cases to see if the courts had ever dealt with anything like this before, dealing with the emergence of this new literary genre,” said Gideon Lincecum, a lawyer who represents Quill Ink and Ms. Ellis. “We found there weren’t any.”
. . . .
Last year, an author who writes in a popular romance subgenre called “Reverse Harem High School Bully Romance” — a trope in which a teenage female character has several aggressive male suitors — claimed that another author had copied her books, and demanded that she remove them. The accused author briefly removed her work from Amazon, but restored them after consulting a lawyer.
Other authors have tried to use trademarks to go after their rivals. Writers have attempted to trademark generic phrases like “dragon slayer” and even the word “dark.” In 2018, the self-published romance author Faleena Hopkins caused a scandal after she registered a trademark for the word “cocky,” and sent infringement notices to other romance authors who used the word in their titles. Amazon temporarily removed some books, including “Her Cocky Firefighters” and “Her Cocky Doctors.” After suing several people unsuccessfully, Ms. Hopkins backed down.
Like Cockygate, the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals. Under the Digital Millennium Copyright Act, individuals or companies can send takedown notices to retailers as long as they have a good faith belief that their work has been infringed. Retailers are protected from being named in related litigation if they remove the material, and many websites comply with D.M.C.A. notices without even investigating the claims. Legal experts say the system is easily abused.
“We’ve seen lots of examples of people sending D.M.C.A. notices when it’s pretty obvious that they didn’t think there was copyright infringement,” said Mitch Stoltz, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital rights group. “There’s not much accountability.”
On May 21, the U.S. Copyright Office released a report detailing how the 22-year-old D.M.C.A. has failed to keep pace with the anarchic digital ecosystem, as online platforms have been overwhelmed by a crushing volume of takedown notices. Between 1998 and 2010, Google received fewer than three million such notices; in 2017, the company got more than 880 million — an increase of more than 29,000 percent, according to the report. Many requests are legitimate, but the report notes that other motives include “anti-competitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”
Amazon agrees that it’s a problem. As the rise of self-publishing has produced a flood of digital content, authors frequently use copyright notices to squash their competition. During a public hearing hosted by the U.S. Copyright Office in 2016, Stephen Worth, Amazon’s associate general counsel, said that fraudulent copyright complaints by authors accounted for “more than half of the takedown notices” the company receives. “We need to fix the problem of notices that are used improperly to attack others’ works maliciously,” he said.
In the Omegaverse case, Ms. Cain’s claim of copyright infringement against Ms. Ellis has struck some as especially tenuous. “They are not very original, either one of them,” said Kristina Busse, the author of “Framing Fan Fiction,” who has written academic essays about the Omegaverse and submitted expert witness testimony for the case on Ms. Ellis’s behalf. “They both stole from fandom or existing tropes in the wild.”
Intellectual property experts say copyright protection applies to the expression of ideas through particular phrasing, but doesn’t cover literary tropes and standard plot points. The writer of a crime novel, for example, can’t copyright the notion of a body discovered in the first act and the killer getting caught in the end.
But the Omegaverse case is likely the first time these legal arguments have been invoked in a dispute over works that grew out of a corpus of fan fiction generated informally by thousands of writers.
PG will note that, both before and after the NYT article was published, a couple of truly nasty lawsuits between the two authors and/or their publishing entities were being fought.
PG will observe that, among lawyers, if litigation of any sort features attorneys being replaced by new attorneys on either or both sides during the litigation, uninvolved attorneys may conclude that the case may be a difficult one for a variety of reasons. Some lawyers, as a matter of general policy, will refuse to accept a case in which prior counsel quit or was fired (assuming that prior counsel is among the few practicing attorneys generally known to be an idiot, a situation which is even more rare than a client wanting to switch legal horses in the middle of a stream).
That said, Ms. Cain was successful in getting the suit filed against her and/or associated entities by Ms. Ellis dismissed.
Here’s a link to Ms. Cain’s story of the lawsuit. In her story, Ms. Cain claims The New York Times did not present the facts behind the dispute with complete accuracy.
PG doesn’t know if Ms. Ellis has made any public comment concerning the disposition of the case. If any of the visitors TPV knows of such a comment by Ms. Ellis, PG would be happy to review it if he receives information about it. The Contact link on TPV is an easy way to send such information to him.
Since the first film of the Star Wars saga, released in 1977, George Lucas and Lucasfilm have become profoundly adept at dealing with legal matters concerning intellectual property. With 205 patents, 1,077 individual trademark applications, and 3,489 registered copyrights under the Lucasfilm empire, it is clear that Lucas and Lucasfilm have been nothing but persistent in protecting their intellectual property rights.
. . . .
As noted above, Lucasfilms owns over 1,000 individual trademarks. Furthermore, many of Lucasfilm’s trademarked phrases and words include registrations in multiple international classes, claiming protection in a wide variety goods and services. Unsurprisingly, Lucasfilm has trademarked the term “Star Wars” (U.S. Registration No. 1127229), which was issued December 4, 1979. Additionally, many Star Wars characters have been trademarked, including R2-D2, Darth Vader, Luke Skywalker, Princess Leia Organa, Ben (Obi-Wan) Kenobi, and Chewbacca. Lucasfilm uses the “Star Wars” and related Star Wars trademarks on a variety of goods, such as clothing, costumes, toys, and entire theme parks. To take its IP protection even further, Lucasfilm has even trademarked fun Star Wars-related phrases, such as “May the 4th be With You.” Additionally, a trademark application for Han Solo’s famous line “I got a bad feeling about this” is currently pending with the United States Patent and Trademark Office (USPTO).
George Lucas and Lucasfilm have even received trademark protection for the popular word “Droid,” a term coined by Lucas in the 1977 film Star Wars Episdoe IV: A New Hope when referencing R2-D2, C-3PO, and other automatons. Due to the fact that the term “droid” is protected by trademark, companies that wish to use the term in shows or films now have to pay Lucasfilm to use the word, or prepare to have possible legal action taken against them.
Lucasfilms has registered over 3,489 copyrights since 1978. The copyrights, a range of artistic expressions including scripts, sound recordings, and movie posters. Other copyrighted works include read-along story books with CDs, such as “Star Wars: Attack of the Clones,” adventure books, and chapter books. The copyrighted chapter book titled “Darth Vader and Friends,” a humorous title which plays on Darth Vader’s infamous sullen attitude and lack of many friends, explores the many friendships that have developed within the Star Wars saga.
Lucasfilm has even gone as far as to copyright movie taglines. For example, the tagline, “The next chapter in the Skywalker saga continues as Rey develops her newly discovered abilities with the guidance of Luke Skywalker, who is unsettled by the strength of her powers.” is from newest Star Wars film set to premier this Thursday, December 14th.
The Authors Guild submitted comments in response to the Copyright Office’s proposed changes to its requirements for serving and filing notices of termination. Sections 203 and 304 of the Copyright Act give authors the right to terminate any grant of rights or contract after 35-40 years (or 56-61 years in the case of copyrights secured before 1978) by sending the grantee a notice of termination and recording it with the Copyright Office. The recent proposed changes would make the process of recording the notices easier by, among other things, giving the Copyright Office discretion to record notices that are untimely, and setting the date of recordation to the date on which the Office receives a copy of the notice instead of the date it receives the notice, fee, and other elements. Nine other creator organizations joined the Guild’s comments, which you can read below.
Following are excerpts from The Author’s Guild letter (a link to the entire letter is at the OP):
As the Copyright Office is well aware, the hard-won right to terminate grants of copyright ownership, control and use after a set number of years, with certain exceptions and limitations, were included in the U.S. Copyright Act of 1976 over the energetic objections of third-party assignees. Congress acted in this regard as a result of its recognition of the inherent fairness and necessity of such provisions in support of the advancement of the American creative community and national culture, as envisioned under Article I, Section 8 of the U.S. Constitution. The plain fact underlying that visionary decision in 1976 by members of Congress is that the accurate valuation of new works in virtually every artistic discipline is by definition an impossible task. Under such circumstances, the only way to ensure that creators are fairly compensated for creating works of enormous popularity and value is to legally empower them to recapture copyright ownership or rights at some reasonable point after the grant. This new and unique copyright termination rights regime, which commenced in 1978, has proven to be far more effective in protecting the abilities of authors and their heirs to survive in the always-difficult economic environment of the arts than the system of bifurcated copyright terms accomplished under the 1909 Copyright Act.
. . . .
We strongly support the Office’s proposed amendment to restore its discretion to record untimely notices “if equitable circumstances warrant.” As the Office notes in its 2010 analysis of
gap grants, “[t]ermination rights…have an equitable function; they exist to allow authors or their heirs a second opportunity to share in the economic success of their works.”3 Considering that refusal to record a notice of termination can extinguish the right of termination, the Office’s discretion in making equitable judgments to the extent allowed by the statutes is vitally important. The Office, for its part, has diligently served as an equitable arbiter to ensure that ambiguities in the termination statutes are resolved in favor of the termination provision’s intended beneficiaries—authors.4 At the start of the decade, the Office undertook a comprehensive analysis of “gap grants” to understand the consequences for grantors who sign a contract years in advance of the work’s creation, something that is common in many creative industries. In its report, the Office recognized that:
[T]he act of recordation by the Office and the refusal of recordation by the Office do not carry equal weight under the law. The latter may permanently invalidate a notice of termination that is otherwise legally sound. This fact and Office’s obligation to provide clear guidance in its practices and the regulations compel the Office to record [emphasis added] rather than reject notices of termination filed under section 203.5
The Office notes in the present notice that the change in wording—from “the Copyright Office reserves the right to refuse recordation of a notice of termination if….such notice of termination is untimely” to “the Copyright Office will refuse recordation of a notice of termination as such if…such notice of termination is untimely” [emphasis added]—occurred in 2017 as part of the parallel rulemaking on modernizing recordation practices without any discussion of reasons or “whether [the change] was intended to narrow the Office’s discretion in this area.”6 Because this change did not issue from rulemaking specifically about limiting the Office’s discretion, it’s reasonable to assume that it does not compel the Office to reject untimely notices of termination without respect to equitable circumstances even if the apparent ambiguity created by replacing “reserves the right” to “will” opens one such interpretation. Nevertheless, the alteration that the Office is now proposing—replacing “will” to “may”—removes the ambiguity and realigns the wording with the Office’s practice of recording notices with minor errors as long as the mistakes were made in good faith.
. . . .
Applying the Harmless Error Standard to Recordation Rules
We also support the proposed amendments to § 201.10(e)(1)–(2) to make compliance with the Office’s recordation rules subject to the harmless error standard. Currently, the Office applies the harmless error standard with respect to information contained in the notice to excuse good faith errors that do not affect the adequacy of notice to the grantee. As such, the harmless error standard adequately balances the equitable importance of the termination right for authors with the practical necessity of providing enough information to the grantee to make them aware that their rights in the work will expire on a certain date. A stricter compliance standard would burden the ability of grantors to reclaim their rights, while a looser standard excusing even errors that grossly misidentify the title or dates would defeat the purpose of the notice requirement. We think this is a sensible approach that should apply to all requirements pertaining to termination notices.
. . . .
Identification of Work
We think that allowing remitters to identify the work by either title or registration number or both makes good sense, and we support the proposed changes to § 201.10 (b)(2)(iv). We agree with the Office that there is a greater risk of material errors being made by mistakes in the registration number that could affect the adequacy of a notice (such as a transposition error in the registration number that identifies another work), and that this risk should be noted in the Office’s instructions for remitters. The Office might also consider issuing a circular specifically discussing common errors that can materially affect the adequacy of a notice, with examples of material and harmless errors.
. . . .
Optional Form for Remitters
We strongly support the Copyright Office’s creation of a form or template to assist remitters in creating and serving notices of termination to help ensure that all of the required regulatory and statutory elements are included. An online form that creators could fill out to generate a letter would be ideal. The creator could simply print out the termination notice letter for physical service (or serve it by email if and when the Office starts allowing service by email). The Office might even consider integrating the termination form into the Enterprise Copyright System (ECS) to harness the power of a centralized and interlinked database. For instance, the
Office could consider programming automated alerts that would pop up if any information entered by the user in the termination form conflicts with information in the registration record (if one exists), thereby giving the notice-filer a chance to correct the erroneous information before service. The feasibility of additional functionalities, such as allowing users to serve the notice on authenticated grantees (for example, those grantees who have used the ECS to record the transfer and/or registered the work, and opted in for service in this manner), could be considered further down the line. In short, the integration of a fillable form into the ECS has a lot of potential to make the recordation of termination notices more efficient. The Office, however, should make it conspicuously clear at all times that using the form to generate and serve a notice does not guarantee recordation, and that ultimately the notice-filer is responsible for locating, entering, and verifying the accuracy of the information contained in the notice of termination.
PG found a lot of good changes described in the original proposal. The AG’s support for the Copyright Office to prepare a template of the form necessary would also speed up the job of creating a form that included all the requisite elements required under the law.
Attorneys that do a lot of this sort of work (well, there are not actually a lot of authors or heirs of authors who know about their right to terminate, so, compared to the number of publishing contracts signed, the number of notices of termination of those contracts are miniscule) have developed (or copied) form templates that address all the current requirements.
But, providing an online form template would allow more authors to do the job themselves and/or cost authors less because more attorneys would be able to provide assistance in filling out the forms.
There are a number of IP/Copyright/Publishing attorneys who visit TPV on a regular basis. PG encourages any of them who have thoughts about this topic to share them in the comments.
PG has written about the statutory rights of authors to terminate publishing agreements they have signed on several occasions, the first time in 2011. Here’s a link to a general explanation of the process and requirements. Basically, for publishing contracts executed by the author on or after January 1, 1978, the right to terminate opens 35 years after a publishing contract was signed (or, more commonly for book contracts, 35 years after the date of first publication) and continues for five years thereafter.
There are some other elements and exceptions, but the gist for most authors of books is the option to terminate starts 35 years after first publication and extends for 5 years to 40 years after first publication.
Under its current rules, everything the author does and every document Copyright Office needs to receive needs to be perfect or made perfect before the 40-year closing of the window. Among other changes, the proposed rules allow the author (or red-faced attorney for author) to make an effective filing, even with some relatively small errors, before the window closes, then fix fix the errors thereafter.
For the math-impaired, 2020 minus 35 is 1985.
1985 New York Times Bestsellers included:
THE HUNT FOR RED OCTOBER, by Tom Clancy
THE CIDER HOUSE RULES, by John Irving
CHAPTERHOUSE: DUNE, by Frank Herbert
TEXAS, by James A. Michener
LONESOME DOVE, by Larry McMurtry
SECRETS, by Danielle Steel
FAMILY ALBUM, by Danielle Steel
LUCKY, by Jackie Collins
PROOF, by Dick Francis
THE MAMMOTH HUNTERS, by Jean M. Auel
LAKE WOBEGON DAYS, by Garrison Keillor
THE TALISMAN, by Stephen King and Peter Straub
THINNER, by Richard Bachman (Stephen King)
CONTACT, by Carl Sagan
THE ACCIDENTAL TOURIST, by Anne Tyler
THE VAMPIRE LESTAT, by Anne Rice
MEXICO SET, by Len Deighton
IF TOMORROW COMES, by Sidney Sheldon
MINDBEND, by Robin Cook
THE SICILIAN, by Mario Puzo
A LIGHT IN THE ATTIC, by Shel Silverstein
SON OF THE MORNING STAR, by Evan S. Connell
LOVING EACH OTHER, by Leo Buscaglia
MOSES THE KITTEN, by James Herriot
Books Published in 1985 that were not bestsellers in that year:
THE HANDMAID’S TALE, by Margaret Atwood
ENDER’S GAME, by Orson Scott Card
THE ACCIDENTAL TOURIST, by Anne Tyler
IF YOU GIVE A MOUSE A COOKIE, by Laura Joffe Numeroff
Following the June 1 filing of a copyright infringement lawsuit by four publisher-members of the Association of American Publishers—including three of the Big Five—the Internet Archive has made its scheduled response and released to news media today (July 29) a copy of its filing with the US District Court for the Southern District of New York.
As Publishing Perspectives readers will remember, this is the suit that asks the court to enjoin the archive’s scanning, public display, and distribution of whole literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.
. . . .
What underlies the contention here is a concept called Controlled Digital Lending, a notion never tested in court and widely considered suspect by many in the publishing industry and author corps.
Controlled Digital Lending’s essential position is that it’s fine for a nonprofit like the archive or a library to scan a print copy of a book it owns, then lend that digital scan out on a one-copy-per-one-user basis. The print copy is to be unavailable while the digital copy is loaned, meaning that only one copy is out at a time in any format, and an author or publisher has the right to opt out of this by asking. Many rights holders have, indeed, asked to opt out because, as they see it, the user of a loaned digital copy of their book has paid nothing for that loan and this means copyright revenue has gone unpaid.
Publishers and authors thus claim that Controlled Digital Lending is not a valid form of “fair use” (called “fair dealing” in some cultures) under copyright law, and in normal procedures with libraries, a publisher’s arrangement for a digital book licenses the library to lend it out only for a certain number of loans and in a set time frame, after which a new license must be bought.
. . . .
In a blog post dated today at the Internet Archive’s site, Kahle lays out the nonprofit’s stance on the lawsuit.
Probably a point of agreement all around is that however much the National Emergency Library may have prompted the suit, the real issue is Controlled Digital Lending. And Kahle goes right to it in his opening line, writing that the lawsuit’s intent is “to end the practice of Controlled Digital Lending,” which he writes is “the digital equivalent of traditional library lending.”
He also continues to see the pandemic as an element of his position, writing, “As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of hundreds of libraries that are using Controlled Digital Lending.”
. . . .
“These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons.
“This form of digital book burning,” he writes, “is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in 10 exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.”
. . . .
“Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.”
When South African President Cyril Ramaphosa sent a copyright reform back to the parliament last week, he raised constitutional concerns as a reason to delay the bill.
But in the preceding months, the United States and the European Union — encouraged by the powerful cultural industry — had pressured him to postpone the legislation with threats of tariffs and withdrawing investment.
. . . .
While the U.S. tariff threats were out in the open, the European Commission’s campaign to hold up the legislation has been exposed in dozens of internal Commission documents, obtained by former MEP Julia Reda via access to document requests, and shared with POLITICO.
Documents include letters from Hollywood studios, record labels and publishers urging the EU’s executive branch to intervene with the South African government, as well as communications between the Commission’s directorates general and missives from the EU’s delegation to South Africa asking the government to delay the reform.
“That [kind of unilateral pressure] is not terribly surprising from the current U.S. administration. What is surprising is that the European Commission seems to have joined in,” said Andrew Rens, a copyright expert at Research ICT Africa, adding that “the U.S. has been absolutely explicit about their intentions. The European Commission has been a little more discreet.”
Ramaphosa’s decision not to go forward with the bill highlights the sway of the cultural industry, which has opposed the reform for fear it would set a standard for the rest of the African continent.
. . . .
“[Pressure from the cultural industry has] gone as far as mobilizing the U.S. and EU trade authorities, threatening repercussions against South Africa were the reform to receive presidential assent. Clearly … these threats have proven quite effective,” said the International Federation of Actors’ General Secretary Dominick Luquer, who expressed concerns about the delay of “a long-awaited and much-needed copyright reform.”
. . . .
The reform — made up of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill — introduced the notion of “fair use,” a general exception to copyright for research, teaching and caricature, among others.
The Commission was involved very early on and wrote to the government in 2015, 2017 and 2019 to raise concerns about fair use and compliance with international treaties. A Commission official said the EU’s executive body was not against the introduction of the fair use provision in third countries’ legislation but called for “a balanced approach and legal certainty.”
The concerns revolved around “clear delineation of the scope of exceptions, the application of exceptions to commercial uses and the issue of compensation for uses under exceptions,” the official added.
Championed by tech companies such as Google, fair use is usually opposed by rights holders because it allows others to use content they have created or own for free. Fair use exists in U.S. copyright law, although the reform’s critics argue the South African text is much broader. European copyright rules don’t include a fair use provision.
Other disputed provisions include additional remuneration rights for authors and performers, supported by some local creators but rejected by companies such as movie studios and record labels who argue they interfere with contractual freedom.
The Motion Picture Association (MPA), which represents Hollywood studios and Netflix, welcomed the president’s decision. “The MPA was part of a cross-creative sector group which included publishing, music and author societies (among others), which worked closely with local creators to voice concerns transparently across many engagements with the relevant authorities,” a spokesperson said, referring to an open letter sent to Ramaphosa in August 2019.
. . . .
“I don’t think [the president] had constitutional issues, I think he was scared by the pressure from the Americans,” said Christo de Klerk, who works for Blind SA and backs the reform because it includes a general copyright exception for people with disabilities. Blind SA, an NGO helping visually impaired people find jobs, filed a legal proceeding against Ramaphosa to force him to act upon the bills, which had been waiting on his desk for over 15 months.
Google will pay for news content from select publishers as part of a new licensing program announced today. It says the content will form part of a “new news experience” coming later this year, launching first on its Google News and Discover services. In some cases, Google says it could offer free access to paywalled articles by paying content owners on the user’s behalf.
Google says it’s starting the program with publishers in Germany, Australia, and Brazil, but says that it’s got “more to come soon.” Publishing partners include Der Spiegel in Germany, and Schwartz Media in Australia, according to the Financial Times.
Google’s announcement comes after multiple countries have stepped up efforts to have the search giant compensate publishers for the news content it links to. Australia recently unveiled plans to force tech platforms to help pay for the free content they profit from. In April, France’s competition authority ordered Google to pay for content from French publishers.
. . . .
However, the FT notes that such schemes have been criticized for only including some publishers and for not paying enough. Some would reportedly prefer legal backing to such initiatives, rather than relying on the goodwill of large tech firms.
In comments published by Google, Spiegel Group managing director Stefan Ottlitz said its partnership with Google “will allow us to curate an experience that will bring our award-winning editorial voice into play, broaden our outreach and provide trusted news in a compelling way across Google products.” The FT notes that Google’s announcement did not disclose the financial terms of its deals.
Today (June 1), four publisher-members of the Association of American Publishers—including three of the Big Five—have filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.
The suit asks the court to enjoin the archive’s scanning, public display, and distribution of entire literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.
The Internet Archive, the association states in media messaging this morning, “has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.”
. . . .
In making the announcement of today’s court filing, Maria A. Pallante, president and CEO of the association, says, “Today’s complaint illustrates that the Internet Archive is conducting and promoting copyright infringement on a massive scale. In scanning and distributing literary works to which it has no legal or contractual rights, the archive deliberately misappropriates the intellectual and financial investments of authors and publishers and brazenly ignores the copyright law that Congress enacted.
“IA operates with profound disrespect for the value chain of copyright, in which authors, publishers, bookstores, platforms, educational institutions, and libraries work together for the benefit of society, whether during prosperity or a pandemic.”
. . . .
The American association has had quick support this morning from its counterpart organization in the UK market.
From London, Publishers Association CEO Stephen Lotinga says, “We stand fully in support of this action by the Association of American Publishers, which reflects the very significant concerns held by publishers and authors about this site.
“The Internet Archive purports to be a library but it is not and behind that guise it is facilitating the distribution of millions of pirated books without paying a penny to the authors and publishers who produce them.
“We are living in unprecedented times, and that’s why publishers have gone out of their way to make content accessible to those who need it, but there’s no excuse for anyone to use the current crisis to infringe copyright in this way.”
. . . .
“We offered to work with Internet Archive in 2017 to create a licensing system that would make the ‘Open Library’ compliant with copyright law, and that offer was rejected. The Internet Archives’ unwillingness to work with authors and publishers to make their program legal unfortunately made a lawsuit the only recourse.”
. . . .
“Despite the self-serving library branding of its operations,” the AAP’s staff writes, “the Internet Archive’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace.
“The Internet Archive scans books from cover to cover, posts complete digital files to its Web site, and solicits users to access them free by signing up for Internet Archive accounts. The sheer scale of the Internet Archive’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world.
“The Internet Archive publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.
“In willfully ignoring the Copyright Act, the Internet Archive conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. The Internet Archive not only conflates print books and ebooks, it [also] ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and ebook lending.
“As detailed in the complaint, the Internet Archive makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.”
PG notes that, among its other activities, The Internet Archive hosts a Malware Museum, including code from which the Archive assures its users, it has removed “destructive routines”.
The Internet Archive also includes a Donation Page, which includes the following message:
We need your help to ensure that anyone curious enough to seek knowledge will be able to find it here, for free. We’re an independent, non-profit website that the entire world depends on.
PG is no friend of the large traditional publishers who have filed this suit and does not like many of the things they do.
However, in this matter, PG is not sympathetic with the Internet Archive’s actions with respect to books. The IA provides lots of other useful services, including scanning copies of public documents, including some patent applications, court pleadings, out-of-copyright materials, etc.
However, considering the world-wide reach of IA, it also provides materials, including entire books, that others can download from anywhere in the world, then, among other things, resell on a commercial basis with little fear of discovery by the original author or punishment.
To be clear, if the Internet Archive stopped accepting material protected by copyright tomorrow and removed all such material from its online collection, that would not mean that book piracy would immediately stop. There are other avenues diligent would-be book thieves could pursue, but it would certainly make their work harder and, likely, less-profitable.
Last week, the U.S. Copyright Office released a report urging federal legislators to change the law in an effort to slow the spread of pirated content like unlicensed recordings of Broadway shows on the Internet. Enforcing Section 512 of the Digital Millennium Copyright Act nowadays has “resulted in an increasing burden on rights-holders to adequately monitor and enforce their rights online, while providing enhanced protections for online service providers in circumstances beyond those originally anticipated by Congress,” stated its spokesperson.
Designed to foster the growth of online commerce in the early days of the Internet, the legislation protects online platforms from being held liable for copyright infringement when their users post copyrighted material without permission, as long as the online platforms meet certain requirements. In addition to having special policies in place, the companies must not receive a financial benefit directly from any pirated content, know about its presence or any red flags that it exists, or allow it to remain on their websites after its presence has been reported.
“As to the development of online services, it is reasonable to state that Section 512 has achieved this purpose,” stated Raza Panjwani, an attorney who worked for the Public Knowledge public interest group. “Online platforms ranging from YouTube, to Facebook, to Tumblr, to Twitter, to Wikipedia, to innumerable subject matter specific discussion forums, have arisen thanks to the legal certainties provided by Section 512,” he said.
However, a lot has changed since the law was introduced in 1998.
When Section 512 was written, the Internet had only recently expanded beyond the closed platform or “walled garden” websites like America Online and Prodigy. “There was no Facebook or YouTube or Twitter; the first MP3 player had just been launched, and Napster, which popularized peer-to-peer file-sharing, would not exist until the following year,” recalled the spokesperson for the Copyright Office.
. . . .
However, with the growth of the Internet, the distribution of Broadway bootlegs has exploded.
Instead of being distributed on dusty VHS tapes like in the 1990’s, bootleg recordings of Broadway shows are now streamed on popular video-sharing platforms like YouTube, stored on foreign file hosting services like Mega, and traded in online communities like LiveJournal. Hundreds of thousands of unlicensed files are floating around the Internet, and one poll found that over 97.9 percent of theatre enthusiasts under the age of 20 have seen a Broadway bootleg.
Many rights-holders believe that the procedures that Section 512 put in place are not effective in combating copyright infringement on the Internet.
“Copyright owners send millions of notifications, yet these collectively have had little impact toward reducing the volume of infringing material available through the numerous sites employing the safe harbors to shield their responsibility for the persistent presence of such material,” argued Allan Robert Adler, the general counsel for the Association of American Publishers trade group. When pirated content is finally removed from a website, it often pops up again somewhere else, requiring rights-holders to spend a ton of time and money monitoring websites and mailing take-down notices. Jeffrey Seller, the lead producer of Hamilton, had to hire someone full-time to search for bootleg recordings of the show, and an executive at the record label Warner Music Group estimated that “it would take at least 20-30 people, at a fully-loaded cost in excess of $2 million per year, and probably the use of an outside content monitoring contractor at additional expense, to meaningfully affect (but not entirely block) just WMG’s top 25 album releases on YouTube.”
. . . .
According to Section 512, in order for an online platform to be shielded from liability, it must have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” The platforms must have plans for blocking repeat infringers to make sure that they do not continue to post pirated content on their websites.
However, federal judges interpreting the law have not made up their minds over what makes someone a “repeat infringer.” Some judges think that it refers to someone accused of committing copyright infringement, and some judges think that it refers to someone found in court to have committed copyright infringement.
The Copyright Office believes that Congress originally intended the phrase to refer to only someone accused of committing copyright infringement, and it now insists that legislators should update the statute to make the language more clear. Websites should not wait for a court to find the person who shares multiple Broadway bootlegs liable before closing his or her account and putting a stopper on the source of pirated content.
In addition, there has been some confusion over how much Internet platforms must know about the existence of Broadway bootlegs on their websites before they are required to remove them. Other than when the companies receive a take-down notice or actually know that there is copyright infringement, the statute demands them to act whenever they see red flags or are “aware of facts or circumstances from which infringing activity is apparent.”
Some courts have taken the position that red flags exist when Internet platforms are aware of facts that would make a specific instance of copyright infringement “objectively obvious to a reasonable person.” The facts must relate specifically to the pirated content, and general knowledge that most videos on a website contain pirated content would not be considered a red flag.
Following are excerpts from a website called Similar Works. As the website states, the purpose of this site is to help protect authors from plagiarism of their books.
Beginning of Excerpts:
Protect your book from plagiarism
Similar Works is a web application built to protect authors from having their work exploited and their stories taken from them.
Upload your book to Similar Works and we’ll scan the text against other titles and keep monitoring — and alert you when we find any matches.
. . . .
How It Works
The Similar Works system analyzes ebook files and identifies matching text.
Books are submitted by authors and publishers who wish to protect their copyright, or concerned readers who believe they have found a work containing plagiarized material.
Similar Works reviews all books manually before accepting them into the archive.
Once a book is accepted, the system checks that book against all other titles already added.
If we find text matches that look suspicious, we contact the author or publisher and provide information so that they can take further action to protect their copyright.
We continue to check every time a new book is added to the archive.
Our Book List shows titles that have already been added, as well as a summary of similarities that have been detected called the Similarity Band.
. . . .
The Similarity Band
The Similarity Band is a visual representation of the similarities that our system finds in books.
Each Band is a generated watermark which represents the book’s text, from beginning to end, going from left to right. This is the text as it appears inside the digital file which is uploaded into the Similar Works archive, so it includes things like the copyright notice, the table of contents, disclaimers, back matter, and samples of other books.
When every book is run through the master algorithm, the text is split into logical chunks, usually consisting of no more than a sentence or two. The Band is generated by lining up all the chunks in order, and then recording a color depending on whether a similarity has been detected within that chunk or not.
. . . .
The Band can tell you a lot about how books are related to each other! For example, if a book has a lot of stripes on the far right side of the Band, then there are similarities detected near the end of the text. That probably indicates that the same back matter or samples appear in another book. Stripes on the left indicate similarities detected near the start of the text, and they are probably disclaimers or generic copyright notices.
(We do our best to filter out disclaimers and other generic language used by a lot of authors, so hopefully you won’t see too many of those.)
Unfortunately, the algorithm can only identify similarities. It can’t tell us why the similarity exists.
Common Phrases or Quotations
If you see only one or two stripes, then those are likely common phrases. The sensitivity of the master algorithm is carefully tuned to try to avoid this, but it’s not always successful. These can also be quotations.
Here’s an example of a Similarity Band for The Best of Relations, by Catherine Bilson. You can see that there is a single white stripe indicating a similarity about two-thirds of the way through the book. That similarity was identified as coming from none other than Pride and Prejudice, by Jane Austen – which is not unusual, as The Best of Relations is based on Pride and Prejudice! In this case, it’s a famous line from Jane Austen’s classic that Catherine Bilson added to her novel.
I was given good principles, but left to follow them in pride and conceit.
The Best of Relations/Pride and Prejudice
What Does Plagiarism Look Like?
This is the Similarity Band for Royal Love, a romance novel by Cristiane Serruya. Royal Love is currently part of an ongoing court case filed by famed romance author Nora Roberts against Cristiane Serruya in April 2019, accusing her of plagiarizing lines from as many as forty other romance authors.
The Similar Works system has identified many similarities in Royal Love, spread throughout the book.
In addition to potentially being a great help to authors, PG thinks this is a fascinating field of analysis.
Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.
As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.
Beginning Original Blog Post:
As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.
PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)
If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.
Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.
If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.
The Complaint is filed on behalf of Pamela DuMond, an individual author.
The Complaint names four different defendants:
Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
Simon & Schuster, Inc. (a very large American publisher)
Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.
The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.
Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.
In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.
The Motion to Dismiss
The second document is a Motion to Dismiss filed by the Defendants.
A few things caught PG’s immediate attention.
The names of three attorneys appeared on the motion, all from the same firm
One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.
The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.
The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”
PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.
However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.
Back to the merits of the Motion to Dismiss.
As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;“
After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.
The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.
One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.
Plaintiff’s Opposition to Defendants’ Motion to Dismiss
For PG, this is where things became more interesting.
The copying and copyright infringement of the Defendants was most likely the result of digital text spinning followed by a re-write and polish. Text spinning — also called automatic paraphrasing — is performed by computer software containing a built-in thesaurus.
While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.
As detailed below, the digital versions of the Work and the Copy show similarities that are so striking as to preclude the possibility that Ms. DuMond and Defendant independently arrived at the same result. The Appendix is replete with similarities that are similarly placed in the Work and the Copy. This Court should employ a digital analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.
But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.
Prince Nicholas Frederick Timmel
Prince Nicholas Arthur Frederick
Heroine / Villainess
Heroine: Lucy “Lucille” Trabbicio
Villainess: Lucy “Lucille” Deringer
To Heroine, Lady Esmeralda
To Hero, Lady Esmerelda
Name of Bar
The MadDog Bar
The Horny Goat Pub
Owner: David Billingsley
Kardashian, Beyoncé, Brad Pitt, James Bond
Kardashian, Beyoncé, Brad Pitt, James Bond
Words on one page
penthouse, hand-painted, crystal, marble floor
penthouse, hand-painted, crystal, marble floors
Chapter 3 Passage
Pies, shop, open, chocolate, berries, counter
Pies, shops, opens, chocolate, berry, counter
Linda Blair Reference
“swiveled his head toward me like Linda Blair”
“Linda Blair Exorcist-head-spinning”
Computer Analysis of Similarities of the Two Works
If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.
The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.
After an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP) has issued a statement of “frustration and disappointment” over an appellate court’s decision.
. . . .
fter an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP) has issued a statement of “frustration and disappointment” over an appellate court’s decision.
. . . .
In its simplest terms, the new April 22 decision—relative to an original ruling that favored the publishers in the summer of 2017—says that the educational community has acted wrongly but that schools and universities are not required to pay the licensing fees certified by the copyright board.
This new decision, as described in media messaging from the association’s executive director Kate Edwards, asserts that while the “fair dealing” guidelines used by the Canadian education sector “do not meet the Supreme Court’s test for fair dealing, it did not uphold the decision that tariffs certified by the copyright board are mandatory.
“In essence,” Edwards says, “the decision reaffirms that the Canadian education sector has engaged in illegal and unfair copying on a systematic basis—and makes the prospect of enforcement for small- and medium-sized publishers impossible.”
. . . .
Announcing that the publishers association is “frustrated and disappointed” by this turn of events, the organization now flatly calls the Canadian market’s copyright framework “broken,” writing, “Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector, which has now accrued cumulative liabilities of more than $150 million (US$105.2 million).
“At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.”
. . . .
Briefly, the disputes around the Copyright Modernization Act have to do with the scope of “fair dealing” (also called “fair use”) in educational settings in Canada.
Since the implementation of the 2012 act in 2013, universities in the English-language Canadian market have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some university settings, instructors have copied up to 10 percent of a book, or a full chapter, and to then distributed this copied material to students without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.
At the height of what turned into a furious standoff between educational entities and the publishers, all the school boards in Ontario and the ministries of education for all Canadian provinces except British Columbia and Québec filed a lawsuit in February 2018 against the government’s copyright collection agency, Access Copyright.
And what the Association of Canadian Publishers—which represents the Canadian-owned English-language houses—had seen as its greatest victory was a July 12, 2017, ruling in Access Copyright v. York University from the federal court of Justice Michael L. Phelan, who wrote in his decision that the Modernization Act’s guidelines as interpreted by York University were unfair and that tariffs (those licensing fees) certified by the country’s copyright board are enforceable.
Our full write on the court’s 2017 is here. To refresh you quickly, Justice Phelan wrote, in part, “The fact that the guidelines could allow for copying of up to 100 percent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.
“York has not satisfied the fairness aspect of the quantitative amount of the dealing,” Phelan writes in his decision. “There is no explanation why 10 percent or a single article or any other limitation is fair. Qualitatively, the parts copied can be the core of an author’s work, even to the extent of 100 percent of the work.”
And Phelan struck down the concept that York and other educational venues had cited, that of being able to “opt out” of paying licensing fees if they wanted to, fees which normally are covered by a several dollars per student per academic term. To accept that educational institutions could simply decide not to participate in the collection of funds federally mandated in the creation of Access Copyright would, the court wrote, certainly lead to economic damage to publishing.
On Monday, March 23, the U.S. Supreme Court held that states are immune from copyright liability. This is troubling because it means that state universities and libraries can abuse copyright as much as they want without liability to publishers or authors. The Court’s decision in Allen v. Cooper invalidated a 1990 amendment to the Copyright Act which had allowed copyright holders to sue states for copyright infringement.
In Allen v. Cooper, plaintiff Allen and his production company were photographers with exclusive rights to document the exploration of the pirate Blackbeard’s shipwrecked vessel, but the state of North Carolina used Allen’s photographs and videos without his consent. Although the parties entered into a settlement agreement requiring the state to compensate Allen, Allen found out that the state had continued to use the copyrighted works after the date of the settlement agreement. The Supreme Court dubbed the alleged copyright infringement “a modern form of piracy.”
. . . .
While it found that states are immune (again) from copyright infringement actions, the Supreme Court nevertheless left a legislative door open: “That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.” The Court recognized the need to protect the interests of copyright holders—even from the states—saying “That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”
Depicting sports stars’ tattoos in video games does not infringe copyright owned by the tattoo artist or their licensee, a US federal court has ruled.
In the first written judgment on tattoo copyright in the US, the US District Court for the Southern District of New York yesterday, March 26, ruled that video game developer and publisher Take-Two Interactive was free to reproduce the designs featured in the real-life tattoos of basketball players like LeBron James in its “NBA 2K” series.
Take-Two, and its subsidiary 2K, had been facing copyright infringement claims brought by Solid Oak Sketches, a tattoo licensing firm which purchased the copyright for James’ tattoos, as well as other basketball players Eric Bledsoe and Kenyon Martin.
. . . .
According to the court, when artists tattoo someone, they grant an implied, nonexclusive licence to their work where it can be reasonably expected to become part of a person’s likeness.
In the case of the basketball players, the artists would have known that they were well-known figures and likely to appear in public, on TV, and in the media.
“Defendants’ right to use the tattoos in depicting the players derives from these implied licenses, which predate the licenses that plaintiff obtained from the tattooists,” judge Laura Swain wrote.
. . . .
Irrespective of the implied licence, the reproduction of the tattoos in the “NBA 2K” games qualified as de minimis use, and did not require the consent of any copyright owner, the court concluded.
Judge Swain wrote that “no reasonable trier of fact could find the tattoos as they appear in ‘NBA 2K’ to be substantially similar to the tattoo designs licensed to Solid Oak,” as they cannot be identified or observed during gameplay.
The court found that the tattoos appear only fleetingly and are obscured by the rapid motions of the in-game players.
A federal judge has handed a big win to Katy Perry, overturning a copyright infringement verdict regarding her hit song “Dark Horse.”
Judge Christina A. Snyder issued a ruling on Tuesday vacating the jury’s verdict, finding that the short musical phrase at issue is not original enough to warrant copyright protection.
The jury had found last July that “Dark Horse” included an eight-note ostinato that was stolen from “Joyful Noise,” a song by the Christian rapper Flame. The jury awarded $2.8 million in damages.
Snyder found that the jury’s verdict was not supported by the weight of the evidence in the case.
“It is undisputed in this case,” Snyder wrote, “that the signature elements of the 8-note ostinato in ‘Joyful Noise’… is not a particularly unique or rare combination.”
Snyder drew on the testimony of the plaintiff’s expert witness, musicologist Todd Decker, in coming to her conclusion that the jury got it wrong.
“A relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection,” she wrote.
. . . .
The decision is the second piece of good news in as many weeks for music labels and major acts, which have felt besieged by frivolous copyright litigation over the last few years. Last Monday, the 9th Circuit Court of Appeals upheld a jury verdict finding that Led Zeppelin’s “Stairway to Heaven” did not infringe on an earlier song by the band Spirit.
It may be true, as some songs have averred, that playas gon play, and haters, they gonna hate.
But federal district judges, well, they rule.
And, when asked to decide matters with elements that they may deem legally triflin’, their honors sometimes can just zing parties before them.
That was the case with U.S. District Judge Michael W. Fitzgerald in Los Angeles, as he took up a copyright infringement suit filed by the songwriters of 3LW’s 2001 piece, Playas Gon’ Play.
They asserted that pop diva Taylor Swift violated their copyright for Playas with her hit Shake It Off (to hear it, click on image above), which became a Billboard No. 1 hit in 2014 and stayed on the charts for 50 weeks. In contrast, Playas “peaked at No. 81 on Billboard’s Hot 100 chart. . . [with] more than 1,000,000 units were sold.”
The judge zeroed in on plaintiff’s claims about infringing lyrics, 3LW having sung: “Playas, they gonna play / And haters, they gonna hate.” Swift, on the other hand, crooned, “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Fitzgerald, in a rebuke that cuts multiple ways at the creativity of the works before him, found that:
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and un-creative to warrant protection under the Copyright Act.
He granted the motion by Swift and other named defendants, tentatively, to dismiss the case, in what might be deemed an artistic Pyrrhic victory.
In a sweeping 32-page decision eviscerating the legal arguments of a disgruntled Queens real estate developer, a US Appeals Court affirmed the rights and monetary damages awarded to a group of graffiti artists whose works were destroyed without warning or consent in 2013.
The artists sued the developer, Gerald Wolkoff, in 2013 for violating their rights after he whitewashed their work at the famous 5Pointz graffiti art mecca in New York to make way for condos. A jury ruled in favor of the artists in November 2017, but it was up to a judge to determine the extent of the damages.
In February 2018, Brooklyn Supreme Court judge Frederick Block awarded the artists a total $6.75 million in a landmark decision. The sum included $150,000—the maximum legal penalty—for each of the 45 destroyed works at the center of the case.
The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.
But the act, which was added to copyright laws in 1990, disallows the modification of works in ways that could be considered harmful to artists’ reputations, and grants protections to artworks deemed to be of “recognized stature.”
[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands. Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship. The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.
. . . .
(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here). (2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns. (3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish. (4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point.
. . . .
Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.
. . . .
These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples.
PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.
As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.
Note from PG: The reason that the following item and the congressional hearings it describes is important for indie authors is that §512 impacts the least-expensive way of dealing with online piracy of an author’s work – DMCA Takedown Notices (go here and here for an overview if you don’t know what those are).
From The Illusion of More:
Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act. Almost as old as the publicly-available internet itself, the 1998 DMCA expressed the best efforts of Congress to predict how the digital market might evolve and to, therefore, strike a balance between the interests of internet service providers (ISPs) and copyright owners.
Over the intervening twenty-two years, much—MUCH—has been written, debated, shouted, flung wailed, opined, and scorned about the DMCA, specifically Titles I and II of the five-title statute. If we ask the tech-centric/copyright-skeptics, they are likely to say that Title I (§1201) is a disaster and that Title II (§512) is working just fine; while the creator/copyright proponent will tell us exactly the opposite.
. . . .
What I will reiterate in this post is that the greatest concern to creators of every size is the conditional liability shield (“safe harbor”) provided to web platforms by §512. It is the foundation of the oft-described “whack-a-mole” problem whereby the independent author attempts to remove infringing uses of her works one-by-one, only to have them reappear on the same platform(s) faster than she can prepare new notices. (And “whack-a-mole” can be just as big a problem for a small business like an apparel maker as it is for a traditional artist like a musician.)
In response to this futile battle with online infringement, authors often give up enforcement via the DMCA takedown process (resigned to donating even more revenue to billion-dollar corporations) while they ask as a community why the major platforms in particular cannot do a better job of preventing protected works from being chronically re-uploaded without license.
. . . .
What is “Red Flag” Knowledge?
Unfortunately, you will get different answers depending on whom you ask, including a court split on the matter if you ask either the Second or the Ninth Circuit Court of Appeals. But in everyday life, “red flag” knowledge is a reasonable, common-sense inference that one can draw from a modest amount of empirical evidence and experience. If you enter the house to find trash strewn across the floor and a chagrined puppy in the corner, you will not need training in forensic science to have “red flag” knowledge that either the dog has committed a misdemeanor, or he has been artfully framed by the cat.
That roughly describes the degree of analysis Congress intended ISPs to perform when encountering evidence of copyright infringement on their platforms. As Professor Aistars noted, “Although Congress did not obligate service providers to actively seek out infringements, it did require them to act expeditiously to remove infringing materials once they have knowledge or awareness of infringing activity on their networks.”
. . . .
For example, let us imagine that the users of a web platform we’ll call Vimeo are making videos using some famous music we’ll call Beatles songs. Any ordinary observer can reasonably assume that these users probably did not license these sound recordings; yet in the case Capitol Records v. Vimeo, the Second Circuit held, on the issue of “red flag” knowledge, that the platform’s operators would have needed either legal or music-industry expertise in order to discover infringement.
Keeping in mind that voluntary removal of material based on “red flag” knowledge of infringement is a condition of an ISP’s “safe harbor,” decisions like Vimeo do more than erase this part of the statute—they exacerbate a culture of infringement through court-sanctioned willful blindness. And as Aistars added in her testimony, “Pointedly, this occurred in a case where discovery had revealed emails from managers to employees winkingly encouraging infringement.” Thus, Aistars is among those who would advocate clarifying the meaning of “red flag” to restore the intent of §512.
The Vimeo emails Aistars mentions are typical of the shoulder shrugs and middle fingers creators are used to receiving from many platform operators, and application of the DMCA to date has unquestionably fostered cultural attitudes anathema to the kind of cooperation between ISPs and rightsholders Congress specifically intended to promote two decades ago. Further, unintended endorsement of this culture among site operators may be exacerbating a persistent misunderstanding among individual and commercial users that the internet is a realm of automatic immunity.
. . . .
Anticipating the likelihood that, if there is to be any revision to §512 at all, “red flag” will be a major point of debate, Professor Tushnet warned against what she and others see as throwing out the proverbial baby with the bathwater. “If there is one message I would ask the members of the Committee to take away today,” she stated in her opening testimony, “it is that most beneficiaries of §512 are not Google or Facebook.” Tushnet cautions that if we were to amend §512 solely as a response to the challenges creators face on very large, commercial platforms like YouTube, we risk simultaneously putting compliant, smaller platforms out of operation and facilitating even greater monopolization by the largest entities.
As a statistical matter, Tushnet is making a “few bad apples” argument, except for the fact that some of the baddest apples in the bunch happen to be the most powerful, wealthiest internet companies in the world. So, even if we take her premise and data at face value (i.e. that millions of compliant sites rely on §512 to exist), this does not recommend ignoring the catalog of evidence that application of the DMCA has promoted willful blindness among the operators of major ISPs. Simply put, if twenty-million sites operate without harm while one site does harm to twenty-million creators, we still have a problem if the law shields that one site from liability. So, the status quo cannot be the final answer.
As a practical consideration, Tushnet’s argument is based on the assumption that a more clearly defined restoration of the intent of “red flag” knowledge can only be implemented by technological measures, which only the largest ISPs can afford.
. . . .
As Tushnet testified, her own Organization for Transformative Works site hosts over “four-million works” yielding 1.2 billion page views per month, while the site receives takedown notices at a rate of less than one per month, most of which are invalid. Assuming these data are correct, the site to which she refers seems barely relevant as an example. It is a large fanfic platform with what appears to be a vast amount of material—mainly short works of written text—that is highly unlikely to infringe. No sound recordings. No photographs. No film clips. At most, some fanfic writer could maybe—and I mean maybe—run afoul of a derivative works right.
From a cursory review of OTW, it is not at all evident that adopting a clearer, statutory definition of “red flag” (in order to hold the majors accountable) would force a site like this one to invest in prohibitively expensive technology in order to remain complaint. If the platform is indeed receiving takedown notices at a rate of less than one valid notice per month, this is most likely evidence that the site hosts little to no infringing material—and that when notices are received, human review is sufficient to the task. Further, the fact that the site hosts “fandoms” for a long list of works owned by major motion picture studios indicates that infringement must be very low to near zero if it has not invited the attention of an industry with the resources to send notices in volume.
Recently, Dean told me about a conversation he was having on Facebook with a group of writers who, in the 1990s, shared the table of contents in an anthology featuring stories about the X-Men. Apparently, that anthology has just gotten an audio edition, and one of the authors in the anthology was thrilled about that.
Then Dean threw some cold water on the excitement. Who’s getting the royalties? he asked. No one knew.
Yes, the project was work for hire, but the writers weren’t paid a flat fee. They were paid an advance against royalties, for all forms of the book.
Dean hadn’t heard about the audio edition ahead of time. Nor had the other authors. I’m pretty sure the writer who announced it just stumbled on it. And once Dean asked the question, the others began wondering as well.
This project—twenty years old—has a somewhat tortured history. It was packaged by a packager so notorious that when he died unexpectedly, the people who had worked with him weren’t upset about his death at all. In fact, when a certain sf convention tried to hold a memorial for him, they couldn’t get anyone to speak at it.
This packager had lied and cheated and abused his writers so badly that they had nothing kind to say about him, even if they were the type of people who would have been inclined to make nice after a death. He stole and embezzled and sold his companies—to himself, sometimes—and managed to always come out smelling…okay, I guess.
When he died, his financial affairs were such a tangled mess that I heard about the troubles the estate had untangling them. I’m not sure how that ended up.
But here’s the thing. X-men is part of Marvel which is part of Disney. Someone still believed they had the rights to that anthology, and could license it in audio. That audio money probably went straight into licensor’s pocket, not realizing that the authors had contracts that stipulated royalties and not a flat fee.
With the arrival of the audiobook came the realization that the book is still in print, which meant it’s still earning money. I’ll wager, although I haven’t checked, that it has an ebook edition (which it didn’t originally have). All of this means it’s been earning royalties steadily for twenty years, which, at least in our household, have not been paid in (ahem) twenty years.
Does that mean Dean and the other writers are owed millions? Naw. Probably not even thousands. Maybe a few hundred each maximum. But that’s nothing to sneeze at.
And therein lies a dilemma for writers. Do they pursue those few hundred dollars? Do they hire an attorney to figure out who actually is exercising the rights? Or do they just shrug and say, Them’s the breaks, and move on to other things.
. . . .
A few weeks before this debacle surfaced, I wrote a sticky note for my pile of possible blog topics. It says, succinctly:
Old system = make $$ for others. Pittance for you.
New system = make $$$$$$$ for you, and some for others.
I’ve been thinking about that in the connection with licensing for writers. If we maintain our own intellectual property, and if we publish the work ourselves, we own every part of that copyright. We license it to various companies which then make some money off the derivative product they produce.
Over his long and varied business life, PG has been exposed to a wide variety of industries and companies large, medium and small operating in those industries.
PG has helped clients who had problems because they dealt with shady characters. As a general proposition, even when the client was able to win in court, even with a generous award of damages, the client was never made whole. The whole episode became a dark and disturbing period in the client’s life that was difficult to put behind her/him. In that respect, dealing with a bad business associate had some parallels with marrying the wrong person.
PG will state that, as a whole, traditional publishing is a weird business. There are some nice and sane people in the business, but there are some very strange and maladjusted people as well, not the kind of people one would expect to find in most well-managed business organizations.
As just one example, practically every other business on the planet pays its contractors on a monthly basis if not more often. PG cannot think of any other major business segment that pays its bills to outside materials/service providers every six months. Undoubtedly there are some, but they are the exception rather than the rule. Of course, Amazon manages to pay self-published authors every month. Ditto for paying Random House, etc. However, Random House, etc., is somehow unable to remit royalties to authors more often than every six months, even royalties for sales made on Amazon for which the publisher is paid monthly.
One of the reasons authors sometimes lose track of the non-payment of royalties is that payments appear at such widely-spaced intervals. If an author were paid royalties earned on a monthly basis, he/she would be more likely to note the omission of an expected payment.
PG was about to begin a rant about the problems caused for authors by unskilled and unschooled literary agents who are yet another intermediary between an author and the author’s royalty payments, but he’s running out of time.
Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.
Up until last week, My Dark Vanessa was one of the most highly-anticipated books of 2020. A novel by Kate Elizabeth Russell. It tells the story of a teenage girl who enters into a sexual relationship with her adult English teacher and how she is forced to deal with that past when she herself becomes an adult and another former student accuses him of sexual abuse.
Heralded by both the New York Times and The Guardian, the book isn’t even due out until March 10 but has been the subject of a mammoth press push and a reported 7-figure advance.
However, that excitement hit something of a speed bump on January 19 when author Wendy C. Ortiz took to Twitter to criticize the book, saying it was similar to her 2014 memoir entitled Excavation.
. . . .
Though this was the result of a brewing controversy among Ortiz’s fans, this brought the allegations to a new audience and prompted Ortiz not only to explain in greater detail but to follow up with an essay on Medium on January 29th.
In that essay, she said My Dark Vanessa was “eerily similar” to her book. The main difference was that Ortiz’s book was a memoir of her experiences when she was abused by a 28-year-old man when she was just 13 while Russell’s was listed as a work of fiction.
Russell, for her part, reached out to Ortiz after the initial Tweets. There, she admitted to having read Excavations as part of her research. However, this did not smooth things over with Ortiz, who posted on Twitter the next day.
. . . .
Russell has gone on to say that, though her book is a work of fiction, she has been working on it for nearly 20 years. In December 2018 she stated that it was moved from being a memoir to being fiction when she chose to make the teacher in her story a composite of the adult men that abused her.
However, the allegations of plagiarism are really only a small part of the story. Ortiz’s grievances deal less with the possibility that her story was coopted, but with the publishing industry itself.
. . . .
In Ortiz’s essay, she outlines the long path she walked to get her book published.
Despite initial interest from publishers and agents, she received repeated feedback from editors that it would not achieve the kind of “wide audience” success they were hoping for with a debut author. Others simply opined that memoirs were overdone, especially for new authors and writing about sexual abuse topics.
She ended up finding a home on a small press and, though the book did well on its initial run, she found no large publishers willing to take it up after it had proven itself.
This, understandably, made it sting all the more when she learned that Russell was becoming a press and media star with her very similar tale. While her book struggled to find a large audience despite a great deal of acclaim, Russell had praise and a significant advance before her book was even out.
For Ortiz, much of the difference could be attributed to race. Ortiz, a Latinx author, felt that at least some of the success of Russell’s work could be attributed to her being white and, thus, more acceptable to the publishing industry. As she said in her essay while discussing her editors’ notes, “‘Wide’ is likely code for white.”
This accusation is nothing new to the publishing industry, which has long been labeled as being “hideously middle-class and white” or simply not having diversity despite multiple attempts and efforts to become more inclusive.
. . . .
Though it is unlikely My Dark Vanessa was a plagiarism, it still raises difficult questions about the publishing industry. This is likely why Ortiz, when discussing the book, never uses the word “plagiarism” and, instead, focuses on the broader publishing industry issues.
. . . .
The question is: Why was Ortiz’s retelling so heavily rejected while Russell’s so quickly accepted and promoted? Race, ultimately, is just one factor in this story as there are undoubtedly countless other differences including the timing of the books, fiction vs. non-fiction and so forth.
PG suggests that media storms demonstrating the many shortcomings of traditional publishing pop up on a regular basis and everyone reliably condemns racism, sexism, classism, etc.
But publishing never changes.
PG suspects it doesn’t really want to change, but also accepts that publishing can’t change. It can’t hire the talented visionaries necessary to lead such a major change.
The other factor is that the major US trade publishers are far from independent organizations. HarperCollins, the publisher of My Dark Vanessa, is owned by Rupert Murdoch’s media conglomerate News Corp. If the executives at HC don’t make their numbers, their bosses at News Corp. will find others who will.
Striking a blow for diversity or another non-monetary good won’t save anyone’s job in Big Publishing if they don’t generate what the big boss expects in the way of cash.
The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor.
Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.
In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.
In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.
Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.
Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.
The thought randomly passed through PG’s morning mind while he was reading the OP.
Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.
Here is the attestation language from a USPTO form for a Utility or Design application:
The above-identified application was made or authorized to be made by me.
I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.
I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.
Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?
From 8 January 2020, Paris Musées is offering as Open Content (i.e. making available without charge and without restrictions) 150,000 digital reproductions in High Definition of works in the City’s museums.
The launch of Open Content will mark a new stage in Paris Musées’ digitisation policy. It will contribute to enhancing and improving the way our collections are made available and will strengthen the measures taken to ensure better public access to art and culture as well as increasing visibility and understanding of the works in our municipal collections.
Making this data available guarantees that our digital files can be freely accessed and reused by anyone or everyone, without any technical, legal or financial restraints, whether for commercial use or not.
Digital files that contain works that belong in the public sphere under a CCØ (Creative Commons Zero) licence will be made available to everyone via the Paris Musées’ Collections portal. At first only reproductions of works in 2D that are not copyright restricted will be available as Open Content, those works that are still in copyright will be in low definition in order to illustrate, on the Internet site, what is available in the collections. Art lovers will now be able to download works by the great names in photography (Atget, Blancard, Marville, Carjat) or in painting (Courbet, Delacroix, Rembrandt, Van Dyck).
. . . .
This policy of free access is part of a programme of development, cultural mediation and opening up of the collections to Internet users. Each user will receive a file that contains an image in HD (300 dpi – 3000 pixels), a document with information about the work and a copy of the Good Practice Charter for images available under CCØ licence which will ask a user to cite the source and offer information about the work.
Although this licence is already used by international museums such as the Rijksmuseum in Amsterdam and the Metropolitan Museum of Art in New York, Paris Musées will be the first French institution to take part and make available a considerable number of reproductions.
Paris Musées, as the producer and distributor, will allow everyone to easily, enduringly, freely and instantly use High Definition images to support their research and improve their physical and digital cultural mediation tools. The reproductions of the works in the scheme will also be part of virtual exhibitions which will include cultural mediation to provide users with as much information as possible.
. . . .
How to access the free of copyright reproductions ?
On parismuseescollections.paris.fr, the images of those works that are under CCØ licence can be downloaded either directly from the file that contains the work in question, or via the home page, from a page dedicated to images free of copyright.
The API (Application Programming Interface) is an interface linked to an app. Access to Paris Musées data via the API has added to our Open Content Policy by making it possible to download High Definition copyright free images and also tie these in to information linked to the works.
. . . .
As the producer and distributor Paris Musées will allow anyone, with just one click, to obtain the reproduction of a work from our collections, to print it, draw inspiration from it or even use it as a screensaver.
In response to strong demand from researchers, students and teachers, we are ensuring they can easily, enduringly, freely and instantly use High Definition images to support their research, their teaching and their publications, thereby improving their physical and digital cultural mediation tools.
To showcase the reproductions of the works concerned, Paris Musées will create targeted virtual exhibitions which will bring users a maximum of information while encouraging them to download and reuse the images.
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Open Goldberg Variations: Before the Open Goldberg Variations, public domain recordings of Bach’s Goldberg Variations were hard to find, even though the scores themselves were in the public domain. Open Goldberg Variations wanted to change that, so it teamed up with professional musician Kimiko Ishizaka and started a Kickstarter project to create studio-quality recordings, promising to release them into the public domain using the CC0 public domain dedication tool. According to the project founders, “Musicians are usually not willing to withdraw their copyrights and their control over usage, but we feel that they thus miss opportunities to contribute to the greater good and benefit from wider distribution of their works. If this project succeeds, we hope that the recording will be available to everyone forevermore, and that it will be a truly widely known and enjoyed artistic work.” Sure enough, the project was funded at nearly double its original funding goal, and as a result all 30 variations performed by Kimiko Ishizaka are now available for free download via CC0.
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In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.
. . . .
Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.
Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.
. . . .
Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.
According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.
The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”
Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.
. . . .
“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.
“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”
Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.
The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).
Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.
. . . .
As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.
Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).
“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.
From The Journal of Intellectual Property Law and Practice:
Online marketplaces reach potential customers all over the world, but can also be used for goods infringing intellectual property rights. Even when online marketplace operators do not themselves participate in such transactions, they do draw economic benefit therefrom, e.g. by charging a fee per transaction. So, to what extent can they be held liable for the sale of infringing goods through their platforms? Whereas such operators qualify as providers of information society services in the sense of the E-Commerce Directive, they are also intermediaries in the sense of Article 11 of the IP Enforcement Directive. And like any economic operator, they must abide by the trade mark laws and other legislation. The interpretation of these distinct sets of rules has given rise to a number of decisions of the Court of Justice of the European Union (CJEU). Certain aspects seem to have been settled by now, but many issues remain open. Absent contributory infringement in EU trade mark law, one of the most pressing questions is if, and to what extent online marketplaces can be held liable for direct trade mark infringement.
. . . .
The Coty/Amazon case (C-567/18), currently pending before the CJEU, might shed some light over the first question, namely the liability for direct trade mark infringement of online marketplace operators, especially when they engage in additional services like they often do nowadays. Such additional services can include supplying the goods to buyers, assisting sellers in promoting the sale of their goods. The teaching to be expected from the Coty/Amazon judgment will largely depend on how the CJEU will interpret the preliminary referral. If it sticks to the facts as presented to it by the German Supreme Court, then it will probably not go as far in its analysis as did the Advocate General, who opened the door to direct liability for trade mark infringement of online marketplace operators, and by extension, online intermediaries in general. Hence, further guidance might be on its way … or not just yet.
. . . .
Liability for direct trademark infringement should not be accepted too soon, at least if online marketplace operators clearly communicate their role to the consumer. After all, establishing a direct trade mark infringement requires an adverse effect on one of the functions of the trade mark. At least as far as the essential origin function is concerned, no impairment thereof can be presumed if the advertising is not misleading as to the nature of the operator. As stated by the Advocate General in L’Oréal/eBay, in 2011, and even more so today, consumers are used to the existence of various intermediary economic activities. Of course trade mark owners should not be left without ammunition. An equitable balance between the interests of online marketplace operators and the interests of trade mark owners could be found by imposing higher monitoring duties on online marketplace operators assuming an ‘active’ role. Where such ‘active’ intermediaries cannot benefit from the hosting exemption, they can be liable for tort if they have not been sufficiently diligent and a causal link exists between their lack of diligence and the damage suffered. Requiring them to display a higher degree of diligence could therefore solve a lot. It would make sense to have a proactive monitoring duty the extent this is proportionate to the degree of their involvement.
. . . .
In this area – the prevention of infringements – an important challenge for online marketplace operators lies in setting up more performant technologies to reveal potential trade mark infringement by their customers/vendors. Automated identification and/or enforcement and voluntary, non-judicial takedown mechanisms established between online intermediaries and IP rights owners are bound to become increasingly important.
It’s not easy (at least for PG) to discover how many trademarks there are in the world. According to the latest information (2016) he could find from the World Intellectual Property Organization (WIPO), there were an estimated Seven Million trademark applications worldwide just during that single year.
PG downloaded a spreadsheet from WIPO summarizing trademark filings on a country-by-country basis from 1980 to 2018. The spreadsheet was 42 columns wide and 203 lines long. For those who may be arithmetically-impaired (as PG is) that is more than 8,500 separate data points.
These numbers show a total of more than 22 million trademark applications filed during that time.
Some trademarks disappear and others go on and on and one. In the US, trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a federal trademark is 10 years, with 10-year renewal terms.
Per Wikipedia, the oldest U.S. registered trademark still in use is trademark reg. no 11210, . . . a depiction of the Biblical figure Samson wrestling a lion, registered in the United States on May 27, 1884 by the J.P. Tolman Company, now Samson Rope Technologies, Inc., a rope-making company.
Additionally, although trademarks are typically issued on a country-by-country basis but international treaties provide that trademarks registered in one nation will be recognized and enforceable in other treaty nations. Under The Madrid System (named after the city where the two underlying treaties were negotiated) is a system for the international registration of marks. It provides a means to seek protection for a trademark simultaneously in a large number of jurisdictions.
One additional complication – trademarks are issued for a particular class of goods/services so different individuals or companies may own identical trademarks that are enforceable for different categories of goods or services. For example, in the US, Ace is a trademark for hair brushes and Ace is also a trademark for stapling machines and The American Council on Education.
So, how does an online marketplace like Amazon build a system that can allow it to determine whether the name of a product sold on its marketplaces around the world infringes the trademark belonging to another individual or company without hiring the largest collection of trademark attorneys in the world?
Multiple countries, lots and lots of different product categories and a legal regimen for enforcing trademarks that may be applied differently in one nation than it is in another.
Here’s a link to a New York Times story about how a trademark can lose its protection if it becomes generic.
The Spanish billionaire who tried to smuggle a Picasso painting out of Spain has been sentenced to 18 months in prison and fined €52.4m. Jaime Botin, part of the Santander banking dynasty, was convicted by a court in Madrid earlier this week.
The work, Head of a Young Woman (1906), was seized from Botin’s yacht, known as Adix, off the coast of Corsica, France, in 2015. According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as “national treasures”.
. . . .
According to Bloomberg, prosecutors argued that Botin, who bought the work in 1977, was smuggling the painting out of Spain and hoped to sell the piece at a London auction house. But Botin said he was taking the painting to Switzerland for safekeeping.
The work was originally due to be sold at Christie’s London in February 2013, but the Spanish culture ministry subsequently barred the work from being taken abroad. Ownership of the work has since been transferred to the Spanish state.
Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights. Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration. But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.
The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen. In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act. After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum. First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.
From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers. In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts.
. . . .
Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising. Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.
. . . .
So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills. For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings. A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing.
. . . .
On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve. After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo. “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.”
I know. We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice. But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland. On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works. “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me. “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.”
So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve. A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit.
Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.
The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.
. . . .
Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:
Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.
Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.
Briefly, there are two classes of potential claims if you use the name of a real person.
In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.
The two types of claims are usually characterized as follows:
1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.
2. “Invasion of Privacy: Appropriation of a Name or Likeness
An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.
To succeed in an appropriation lawsuit, you must prove that:
1. You didn’t grant permission for the use of your identity.
2. The defendant utilized some protected aspect of your identity.
(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)
3. The defendant used your identity for their immediate and direct benefit.
(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.
PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.
Who am I to judge someone’s trademark but this one does not roll off the tongue, at all. Lucasfilm has taken the first step to oppose one long trademark based off of a Star Wars’ quote: GREASE, I AM YOUR FATHER STEAMVADER.
. . . .
A residential professional grease company (who knew this was even a thing, I mean, how many turkeys are you deep frying for Thanksgiving???) has filed a trademark registration application for the phrase GREASE, I AM YOUR FATHER STEAMVADER. The phrase is not explained on the company’s website nor is it very prominent. In fact, in the in use specimen filed with the Trademark Office, the trademark cannot even be seen on it.
. . . .
Nestor Lopez of Lopez & Lopez Contractors, Inc. filed the mark in May 2019. A trademark attorney would probably have told him to expect some pushback from Disney but who needs an attorney. The grease cleaning company faces a pending opposition from Lucasfilm over the trademark. Lucasfilm has taken the first step to oppose the mark and filed a request for an extension of time to oppose. This allows the parties time to discuss settlement and it may scare off people who are not sure about proceeding with the mark.
During one of his college summers, PG and a friend who was majoring in electrical engineering traveled to Minneapolis. The friend had a sumer internship in the legal department of a large technology company and PG found a job in a soft drink bottling factory (which demonstrated the varying market value for engineering students and no-idea-for-a-major students).
During the summer, per the OP, PG’s friend told him entertaining stories about various strange patent and trademark applications he came across during his work day. PG discovered that entertaining stories from a bottling factory usually involved exploding bottles when the bottling machine went out of adjustment or a forklift dropping a pallet of root beer.
After graduation, PG’s friend went to law school and became a patent attorney. The last PG heard, his friend had founded what became the largest intellectual property law firm in a major midwestern city.
It would be a nice ending to this story if PG had started what became the largest bottling factory somewhere, but he went to law school instead in order to remove the curse from his frivolous undergraduate major.
Artists on Twitter say that their work is regularly stolen by armies of bots that generate t-shirts from popular designs—and they’ve got the receipts to prove it.
Here’s the scam: Bots linked to popular t-shirt sales platforms appear to be crawling Twitter for replies to artists that mention phrases like “I want that on a t-shirt” or “Can I get that on a t-shirt?” Within hours, vendors on popular t-shirt destinations (including Amazon, A&H Merch, Toucan Style, Moteefe and others, according to Medium) then start offering the original work for sale without seeking the artist’s approval, let alone cutting them in on the take. The only way to have the infringing material removed is for the artist to then contact the platforms and suffer through a slow-moving takedown process. It’s an intractable problem for independent artists who rely on social media platforms for visibility but are having their work stolen en masse.
. . . .
Painter Rob Schamberger highlighted the issue in a Dec. 1 tweet, writing “Never, ever, EVER respond to someone’s art on Twitter saying you want a shirt with that art. Bot accounts will cue into that and then pirate the artwork. This then becomes a nightmare for the artist to get the bootleg merchandise taken down.”
From there, Twitter user and artist @Hannahdouken came up with an idea: the bots doing the pirating may be able to detect when customers may be interested in purchasing a shirt, but they’re not smart enough to discern what the actual content of the shirt is.
@Hannahdouken asked Twitter users to respond to an image stating “This site sells STOLEN artwork, do NOT buy from them!” saying variations on the phrase “I want this on a shirt.” It worked…
. . . .
… after which all hell broke loose, with Twitter users escalating the prank to include terrible memes and intellectual property belonging to the infamously tight-fisted Disney Corporation, like Mickey Mouse. Multiple stores almost immediately ran shirts saying things like “Not licensed by the Walt Disney Company / This is NOT a parody! We committed copyright infringement and want to be sued by Disney. We pay ALL court and tribunal fees.”
. . . .
Another Twitter user was able to trick one of the stores into running a shirt with a picture of Mickey Mouse saying “China must be held accountable for its crimes against Uighur Muslims! Just ask me, Mickey Mouse! IP of the Disney corporation! Ha-ha!”
. . . .
“If you’re an artist and your designs get stolen its extremely frustrating, since the whole process is so automated and quick there’s few things to prevent this, and the process of getting these shops to remove your work is so frustrating and doesn’t stop them from doing it again,” @Hannahdouken told Gizmodo via Twitter DM. “The shirts they sell are extremely cheap as well, so people probably feel more inclined to buy it and less likely to check on the legitimacy of sites, instead of buying from an artists store where they actually get a cut.”
Link to the rest, including images of lots of examples, at Gizmodo
On Monday, 2 December 2019, the Danish Maritime and Commercial High Court issued a ruling in a case which explores the fine line between destruction and alteration of existing artwork. The conclusion? Cutting up an existing artwork to repurpose the individual pieces as wristwatch faces constitutes reproduction of the work in an amended form – not destruction followed by the creation of a new, original work.
. . . .
In the case in question, the Danish artist Tal Rosenzweig (better known as “Tal R”) had requested a preliminary injunction against the Danish company, Kanske Denmark ApS (“Kanske”), to prevent it from cutting up the painting “Paris Chic”, created by Tal R, in order to insert the pieces into wristwatches. In addition, Tal R had also separately requested preliminary injunctions against the manufacture, sale and marketing by Kanske of such wristwatches.
In the injunction requests, Tal R claimed primarily that the intended use of his “Paris Chic” painting by the company would constitute an infringement of his copyright to the work, reasoning that it would violate his exclusive rights under section 2(1) of the Danish Copyright Act “to control the work by reproducing it and by making it available to the public, whether in the original or in an amended form […]” as well as his rights under section 3(2) of the Act, according to which “[t]he work must not be altered nor made available to the public in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality”.
Tal R further claimed that by marketing and offering for sale the wristwatches (even though none had actually been made, and the painting was therefore yet unharmed), Kanske had violated section 3(1) of the Danish Marketing Practices Act, according to which “[t]raders shall exercise good marketing practice with reference to consumers, other traders and public interests”, as well as section 22(1) of the Act, which states that “[t]raders must not use business identifiers and similar devices that do not belong to them […]”. Specifically, Tal R claimed that Kanske had made unauthorized use of the “Tal R” brand in its marketing, thereby implying that a commercial partnership existed between Tal R and the company.
. . . .
After acquiring the painting, Kanske had initially announced on its website that it would host an online auction, promising that the winner would be given first choice of which piece of the painting he or she desired for a wristwatch. According to one screen shot submitted by Tal R, the highest bid as of 11 November 2019 was DKK 41,000 (approximately EUR 5,467).
. . . .
According to screen shots submitted by Tal R, the company went on to claim, inter alia, that the purpose of the project was to “arouse emotions”, and that “there can also be strength in the grief that people will feel at losing something. There can be a catharsis in people getting angry at us for doing something that people think is forbidden.”
An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.
And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”
At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”
. . . .
At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.
“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”
Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.
“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”
In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”
. . . .
The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”
The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.
The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:
Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
How is ALI approaching the restatement process?
How much weight is given to existing law and legislative history?
Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.
. . . .
In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”
PG is reminded of an old Southern rural saying, “The stuck pig squeals.”
The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.
PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.
Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.
PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.
From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.
The United Kingdom is in the midst of what might be its most important election in a century. With the drama over Brexit swirling, the country is at a crossroads and it’s very likely that the next election will shape the future of the country for decades to come.
However, that election took a back seat on Friday following a terror attack on London Bridge that killed two people and injured three. That attack has now become a talking point of the election itself, with all sides striving to assure voters.
One of the more notable responses was from Prime Minister Boris Johnson, who is also head of the Conservative Party. In a 16-tweet thread, outlined why the alleged attacker was released, putting the blame on the Labour Party, his biggest political opponents.
. . . .
However, shortly after it was published, a pseudonymous blogger, The Secret Barrister, put out his own tweet calling the thread a plagiarism of his blog post, which had been published just hours earlier.
According to The Secret Barrister, Johnson cited the same sources he did, made similar observations and then “stripped out the inconvenient context and adopted a false conclusion.”
He also added:
“I find it fascinating that, having never previously shown any interest in explaining complex areas of law to the public, within hours of my posting of a full explanation of the legal issues involved in this case, the Prime Minister’s Twitter account embarked upon a 16-tweet legal thread…”
This, as with any case of political plagiarism, has led to a sharp divide. In the responses to the thread, many have used The Secret Barrister’s words against Johnson. Others, however, have defended him against the claim.
. . . .
It’s important to fully understand the allegations against Johnson. Even though many have called this a “copy and paste” plagiarism, including The Secret Barrister himself, it is not actually that.
The words between the two are completely different. In fact, there are a lot of differences between the two works, in particular with the conclusions. They are similar works, but they are not identical or even nearly identical.
Instead, the allegations center around a combination of the points that Johnson raises, the order that they are raised in and the source he cites. In particular, The Secret Barrister found it odd that both he and Johnson referenced the same document by the Prison Reform Trust charity.
To that end, it’s easy to see why The Secret Barrister and those that support him see the similarities. The tweet thread and his post are indeed very similar, hitting very similar points and differing only with the conclusions. Though no words are copied, one might say the structure of the posts are very similar.
But does this prove plagiarism? This is where things get thorny.
For The Secret Barrister, the case is open and shut, “The possibility that the PM’s own legal advisers drafted his thread without any regard to my witterings has to be carefully considered. But I just can’t see it.”
He goes on to add:
“The number of people who have (apparently independently) noticed the similarities in substance, even if the language has been changed, leads me to believe I’m not going mad. The most obvious explanation is that Johnson (or likely his special advisers) have taken their info from the blog, stripped out the inconvenient context and used it to present Johnson as a legal sage sharing his wisdom. Or, as I’m told academics would term it, plagiarism.”
But is it that straightforward? For me personally, while I agree that there is a reason to be suspicious and wary, it’s hardly an open and shut case. It may well be plagiarism, but there are some pieces to the puzzle missing as it stands right now.
. . . .
To prove that something is plagiarized, one usually has to answer three questions:
Was the work correctly cited? If it’s correctly cited, it’s not plagiarism.
Can the similarities be explained by common sourcing, including tropes, cliches, etc? If so, it’s not plagiarism, at least not a plagiarism of the work in question.
Can the similarities be explained by coincidence? Coincidences happen. Look at the case of Dennis the Menace. Coincidences aren’t plagiarisms. [PG Note: See below]
The first two aren’t helpful here as there is no citation in either work and there’s no indication that The Secret Barrister pulled his format from another source or from a template of some kind. That leaves only the third issue.
But this is where things fall apart a bit. Coincidence is often very difficult to disprove satisfactorily. With verbatim plagiarism, this is relatively easy. We can show that certain strings are unique to the two works and that the odds of them being created independently are astronomical.
. . . .
The truth is that we don’t know and not only is there not enough evidence to say conclusively this is plagiarism but there likely never will be. Barring a confession by Johnson or additional information about who wrote the tweets and how, we are unlikely to have enough information to be 100% sure one way or another.
But, even if we did, the damage would be somewhat limited. While copying someone’s outline and one of their sources is certainly plagiarism, it’s also not as severe as verbatim copying or more direct paraphrasing.
The Secret Barrister’s original post has over 3,700 words and Johnson’s tweets barely break 700 (though they include images of documents). It’s not verbatim plagiarism and it’s not a paraphrase, it’s a different beast altogether. They are similar documents in structure and source only.
Here is a bit more about the Dennis the Menace case mentioned above, also from Plagiarism Today:
1951 must have been a very bad year to be named Dennis.
The reason is because on March 12 of that year two separate comics entitled Dennis the Menace went on sale, one in the UK, one in the U.S (Note: The UK version is dated March 15 but actually went on sale on March 12).
The UK comic Dennis, which first appeared in Beano #452, was created by David Law and published by D.C. Thomson as a comic strip inside a popular comedy comic book. It’s U.S. counterpart was created by Hank Ketcham and initially distributed by Post-Hall Syndicate as a syndicated comic strip for newspapers.
Though, based on this simple fact, many draw the conclusion that one of the two creators had to have plagiarized the other, it’s become clear that simply wasn’t the case. Not only did the two creators have no way of knowing what the other was working on, but the two characters are actually extremely different. The UK version is a true menace, a mean-spirited boy who likes to cause trouble, and the U.S. version is happy-go-lucky child that causes trouble without intending to.
The two creators largely agreed to allow each other to work on their respective comics and both are continuing in at least some form today (though the UK version is now known as Dennis and Gnasher, named after Dennis’ dog). Though the U.S. version may be the most popular internationally, the UK version is better known in its native country. No legal action has been taken against either creator.
Still, the coincidence is one of the best-known in the publishing world and was recently highlighted on Cracked. However, it also highlights one of the most difficult aspects of plagiarism detection, trying to separate what is a plagiarism and what is a coincidence. Sometimes, it can be nearly impossible to be certain.
PG notes that, under US law, plagiarism is not illegal unless it rises to the level of copyright infringement.
Plagiarism is using someone else’s work without giving proper credit – a failure to cite adequately.
Copyright infringement is using someone else’s creative work, which can include a song, a video, a movie clip, a piece of visual art, a photograph, and other creative works, without authorization or compensation, if compensation is appropriate.
Schools enforce plagiarism.
The courts enforce copyright infringement.
. . . .
Plagiarism is using someone else’s work without giving proper credit. Schools deal with plagiarism by giving the cheaters academic consequences. Most teachers will give F grades for plagiarized work, and some will do more. When I was a teaching assistant at Stanford University, some students were suspended for copying answers during a test.
Plagiarism doesn’t have to include copyright infringement. For example, William Shakespeare’s plays are not copyrighted because they’re too old. Even though it would technically be legal to copy from one of those plays for an English assignment, it would still be plagiarism if you didn’t give credit to Shakespeare. Your teacher may not be able to take you to court over it, but she can certainly give you an F. You might even get suspended or expelled from school. Even though copying one sentence from a Web site is legal according to United States copyright laws, that may still count as plagiarism in your teacher’s book.
Copyright infringement is using someone else’s work without getting that person’s permission. The author of any original work, including books, essays, Web pages, songs, pictures, and videos, automatically gets the copyright to that work, even if she doesn’t label it with the copyright symbol and her name. The work must be fixed in tangible form, which means it must be stored on something physical, such as paper, canvas, a CD, or a hard disk. This makes college students copyright owners, since they’ve already written many original works for school.
The owner of a copyright gets to decide who can legally make copies of that work. It is illegal to copy large sections of someone else’s copyrighted work without permission, even if you give the original author credit. Imagine someone making copies of the movie Finding Nemo without asking for permission. He sure won’t get away with it just by giving the authors credit on the DVD cover!
Fortunately, a fair use exemption allows you to legally copy small amounts of someone else’s work. Just make sure to give the author credit so you won’t be guilty of plagiarism!
The courts assign consequences for copyright infringement. This means someone may come after you with a lawyer if you violate his copyright. Your school can report copyright infringement to people who have the legal power to take you to court. Students have been sued for copyright infringement before. In some cases, the court may require you to pay the fees for both your lawyer and the copyright owner’s lawyer.
Earlier this year, PG created a long post about Fair Use, Derivative Works, Transformative Fair Use which is not a Derivative Work and Infringing Derivative Works. He thought it was interesting, but you may not.
Although the term may still not be familiar to the wider public—including college students and faculty—Open Educational Resources (OERs) have been an integral part of education worldwide for at least two decades. OERs generally refer to digital educational materials that anyone anywhere can use freely and legally, including the user’s right to copy, share, enhance and/or modify them for the purposes of sharing knowledge and enabling education. These run the gamut and stretch beyond digital textbooks—usually perceived as the most common educational resources—to include everything from course materials, university courses, e-learning platforms, software, and streaming videos to lectures and digital repositories of monographs and journals.
. . . .
Regardless of how different and varied OERs may seem at first—ranging from single books to multi-functional and comprehensive platforms—what makes a resource an OER is that it is freely available to anyone, notwithstanding a person’s location and affiliation. OER users may well be college and university students, but they may also be independent learners, researchers or lay readers. Of course, ‘open’ does not mean ‘without any restriction’ or ‘without any financial support.’ It simply means ‘free access.’
Likewise, ‘open’ does not mean ‘without financial backing.’ The mechanisms through which resources become ‘open’ and ‘free’ are complex, always evolving, and require ongoing financial support. A variety of financial models exist on the market that contributes to the sustainability of OERs (Downes, 2007), ranging from, among others, endowment models (funding is usually received from charitable foundations) and membership models (participating organizations contribute a certain amount as members) to sponsorship models (a range of commercial messages, more subtle or less subtle, may interrupt learning and reading), and institution models (various institutions assume the full responsibility for their OER initiatives and bear the financial burden).
MIT OpenCourseWare, an online platform housing free
eductional and teaching materials from MIT courses
Open Textbook Library, a catalog of free, peer-reviewed, and
Open Course Library, a collection of materials, including syllabi,
course activities, readings, and assessments
Khan Academy, an online source of short lessons in the form of
videos and practice exercises and materials for educators
National Science Digital Library, a library of collections and
services supporting STEM education
OER Commons, a collection of over 50,000 university courses,
open textbooks, interactive mini-lessons, and K-12 lesson plans
Wikipedia, the world’s most used free encyclopedia
Wikimedia Commons, a repository of free digital images
and various media files
In the context of libraries, OERs as we know them have been around for longer than two decades. Librarians have, in many ways, contributed to the infrastructure of open education long before various types of OERs became the norm. The Internet Archive, for example, has been up and running for nearly a quarter of a century, while Project Gutenberg, the first online repository of public domain content—also a form of OER built and maintained by volunteers, including librarians—has its beginnings in the early 1970s. These initial undertakings paved the way for the advent of new, more specialized types of OERs used today. And as education began moving in the direction of open digital textbooks—scattered in disparate sources online that students and faculty had little awareness of—librarian roles in colleges and universities began to shift, requiring more active participation in the discovery of OERs.
What exactly has contributed to the explosion of OERs in recent years? The steep cost of textbooks and higher education in general, particularly in the United States, is frequently attributed to their popularity perhaps more than any other factor. According to the College Board, undergraduates now spend an average of $1200 on textbooks annually, and this remains a concern.
. . . .
OERs are widely and universally available
technology has made the cost of sharing OERs practically non-existent
given their digital nature, OERs can be modified to fit various needs
OERs help accelerate the advancement of human knowledge
due to ongoing technological improvements, OERs can reach learners faster than print textbooks
OERs allow students and parents to save significantly
OERs promote self-directed learning
OERs reach large numbers of learners at the same time, regardless of their location
OERs have revolutionized the way remote students or long-distance learners approach education
OERs allow for a more extensive peer review process
In what has to be one of the more bizarre plagiarism stories in recent memory, Qatar Airways accused Singapore’s Changi Airport Group of plagiarizing not a paper, an idea or a proposal, but an airport.
The accusation was made by Akbar Al Baker, who is the CEO of both Qatar Airways and Hamad International Airport. In a recent press conference, he claimed that Singapore’s Changi Airport was a plagiarism of a planned expansion of Hamad International Aiport in Doha, Qatar.
According to Al Baker:
“When I show you the images later [of the planned expansion], you will realize that somebody copied our design, which was already on the table nearly six years ago … We had individuals from that country, I will not name it, that took our design and did it.”
Though Al Baker did not name the country by name, most sources indicate that he was referring to Changi Airport in Singapore.
. . . .
Both airports feature large glass ceilings with triangular frames, mammoth indoor waterfalls and lush green spaces for travelers to roam.
However, the Changi Airport Group has responded to the allegations saying that they began the competitive process for the redesign and awarded it in May 2013. According to them, the company that won has never done any business in Qatar and its CEO has never traveled to Qatar.
Though Al Baker has not responded to the rebuttal, it appears that actual plagiarism is at best highly unlikely if not completely impossible. Basically, two airports had similar designs and that led to some allegations of plagiarism. But what does the law say about this and could it ever happen?
Not only could it happen, it very likely has.
. . . .
To be clear, Al Baker and Hamad International never had a very strong case. They were accusing a Singapore airport that opened in April of this year of being a plagiarism of a project that they haven’t even broken ground on.
Given how much time, energy and resources go into designing and renovating an airport, the dates were never going to line up. When your airport isn’t going to be completed until 2022, it’s tough to claim that an already-open airport plagiarized it.
But this isn’t the first allegation of airport plagiarism. In 2018, architect Duangrit Bunnag was accused of plagiarizing their design for an airport terminal in Bangkok, Thailand. Bunrag won a contest for the job after the original winner was disqualified for failing to file the needed paperwork.
In this case, Bunrag was accused of plagiarizing not another airport but another architect, Kengo Kuma. Bunrag flatly denied the allegations saying that his design was inspired by the Thai forest and others noted that the elements that were alleged to be copied predated Kuma and were parts of traditional building techniques in the region.
. . . .
Though the United States isn’t relevant to these cases, it is the easiest for us to examine. Here, the law here is pretty clear. Architectural works are protected under copyright and have been since December 1, 1990. Likewise, three-dimensional artwork such as sculptures can be protected as well as other artistic elements that are not simply useful articles.
This means that building a substantially similar building without a license could be a copyright infringement. Even if the plans themselves were not copied, even an attempt to mimic another architectural work could be an infringement.
But while it’s certainly possible that a claim of copyright infringement could come from this kind of plagiarism, Al Baker would likely have an uphill battle proving it.
First, he would have to show that the architects of Changi Airport had access to his plans. If infringement is not physically possible, then no infringement took place, it’s that simple. That’s a huge hurdle in this case with the timing of everything. Proving that an already-completed airport infringed on one that hasn’t broken ground is going to be, at best, difficult.
But, even if that hurdle can be crossed, it’s still an uphill battle. Not all inspiration is infringement. Al Baker would still have to prove that the elements that were copied can be protected by copyright and are unique to his work. Elements such as indoor waterfalls and glass ceilings are hardly unique to any one architectural work.
For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.
Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms.
Deeks highlights several kinds of algorithms used domestically and explains how they might parallel military applications. Domestic decision-makers use algorithms to assess risks individuals pose in order to determine, for example, whether to grant bail, impose a prison sentence, or allow release on parole. Even more controversially, police departments use algorithms to “identif[y] people who are most likely to be party to a violent incident” in the future (P. 1543, emphasis omitted), as well as to pinpoint geographic locations where crimes are likely to occur.
. . . .
As compared with domestic police departments or judicial officials, militaries using algorithms early in a particular conflict are likely to have far less and less granular information about the population with which to train their algorithms. And algorithms trained for one conflict may not be transferable to different conflicts in different locations involving different populations, meaning that the same problems with lack of data would recur at the start of each new conflict. There’s also the problem of applying algorithms “cross-culturally” in the military context, rather than “within a single society” as is the case when they are used domestically (P. 1565), and the related possibility of exacerbating biases embedded in the data. With bad or insufficient data come inaccurate algorithmic outcomes.
. . . .
Deeks argues that the military should “fight its institutional instincts” (P. 1576) to hide behind classification and limited oversight from Congress and the public and instead deploy a lesson from the war on terror—that “there are advantages to be gained by publicly confronting the fact that new tools pose difficult challenges and tradeoffs, by giving reasons for their use, and by clarifying how the tools are used, by whom, and pursuant to what legal rules.” (P. 1583.) Specifically, Deeks argues that in pursuing transparency, the military should explain when and how it uses algorithms and machine learning, articulate how such tools comply with its international law obligations, and engage in a public discussion of costs and benefits of using algorithms. (Pp. 1588-89.)
PG notes the original article was published in The Virginia Law Review and is available here.
PG is inclined to think there is virtue in secrecy for algorithms used in military conflicts. At a minimum, disclosure provides a headstart for those who may be future opponents in developing the same sort of artificial intelligence. Additionally, there is a possibility of providing assistance to a future enemy in its development of counter-weapons to defeat or reduce the effectiveness of the original algorithms.
Supreme is being sued for allegedly jacking another company’s camouflage print for a range of its ultra-hot-selling wares. According to the complaint that ASAT Outdoors LLC filed in a New York federal court this week, Supreme’s corporate entity Chapter 4 Corp. is on the hook for copyright infringement for its “unauthorized reproduction and public display” of a copyright-protected camo design that is “owned and registered by” Stevensville, Montana-based ASAT.
Apparel company ASAT asserts in the newly-filed lawsuit that Supreme – which maintains the title of one of the buzzy streetwear brands in the world – “copied [its camo] design and created derivative works of [it] and placed [them] on their apparel, such as hats, pants and jackets to sell on their website and in stores.” The problem with that, ASAT argues in its suit as first reported by WWD: “Chapter 4 did not license the design from [ASAT] for its apparel, nor did Chapter 4 have [ASAT’s] permission or consent to use or sell the design on its apparel,” such as its $218 “work” jackets and $145 cargo pants.
As such, ASAT claims that the New York-based streetwear brand has “willfully, intentionally, and purposefully, in disregard of and indifference to [ASAT’s] rights” infringed upon its exclusive right as the copyright holder to reproduce, copy, display, and make derivate works of – i.e., works based on or derived from an existing copyright-protected work – its protected camo print, thereby, running afoul of federal copyright law.
The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement.
Here are four of the most common copyright myths—debunked.
Myth #1: Public Access = Public Domain
The first myth is that anything to which the public has access, or that is publicly available, is in the public domain; i.e., if it’s on the Internet, it can be used without a license or other permission. This is far from the truth.
Contrary to popular belief, whether a book, work of art, lyrics, sound recording, or other copyrightable work is in the public domain does not depend on where the work can be found. Instead, determining if a work is in the public domain depends on when the term of copyright protection for that work expired— or if it existed in the first place.
. . . .
Myth #2: The Poor Man’s Copyright
The second myth is a “theory” that has endured for a very long time and remains surprisingly popular with freelance writers. Instead of registering the copyrights in a work with the U.S. Copyright Office, the myth is that the protection of a “poor man’s copyright” exists when an author mails himself or herself a copy of a work and then preserves the unopened envelope when he or she receives it in the mail. A variation of the theory is having the work notarized.
Mailing yourself a copy of your work or having it notarized has no legal effect. While it may serve as evidence that the work is in your possession as of the date it was mailed or notarized, it in no way proves that you are the author who created that work or holds the rights in it. The only way to register a copyright and to have documentation of your ownership in a copyrightable work is to file an application with the Copyright Office, which leads us to the next myth.
Myth #3: Registration Isn’t Necessary
Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.
Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.
An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office.
. . . .
Myth #4: The 30 Seconds/500 Copies/Two-Thirds/200 Words Rule
The final myth is that permission or a license is not needed if only a certain number of copies are made or a certain amount or percentage of the work is used, and that sticking to these arbitrary numbers automatically qualifies the unauthorized use as “fair use” under the Copyright Act.
With acknowledgments for creativity, there is no bright-line rule that making fewer than a certain number of copies or using less than a certain amount of a work somehow makes copyright infringement permissible under copyright law. Unless a use falls explicitly under one of the enumerated limitations on a copyright holder’s exclusive rights set forth in the Copyright Act,17 permission must be sought from the rights holder to reproduce, distribute, publicly perform, publicly display, and/or create derivative works of a copyrightable work—whether or not it is registered with the Copyright Office.
The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05 a provision that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence for failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.
Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.
Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices.
. . . .
Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,
“Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”
In fact, the patent applications are part of a project, the Artificial Inventor project.
There are two traditions that are rapidly becoming as good markers to the start of the festive season as an advent calendar: John Lewis releasing its Christmas ad and children’s authors accusing the retailer of ripping their books off.
Five years ago, readers spotted similarities between Oliver Jeffers’ Lost and Found, about a boy and a penguin, and John Lewis’s ad about a boy and his penguin. Last year, it was the turn of former children’s laureate Chris Riddell, who noticed similarities between John Lewis’s blue furry monster that hid under the bed, and his own creation, the blue furry Mr Underbed. “The idea of a monster under the bed is by no means new but the ad does seem to bear a close resemblance to my creation – a big blue unthreatening monster who rocks the bed and snores loudly,” said Riddell at the time; Mr Underbed went on to sell out.
This year, more than one children’s writer is feeling aggrieved about John Lewis’s new ad, Excitable Edgar, in which a small dragon keeps spoiling festivities for a village – burning down the tree, melting a snowman – until a girl finds him a job to do (lighting the Christmas pudding). Author Jen Campbell wrote on Twitter: “If you enjoyed this year’s John Lewis Christmas advert, then you’ll love our book Franklin’s Flying Bookshop, all about a dragon called Franklin (who the locals are scared of) & his best friend, a red-haired girl called Luna. Y’know. Just saying.”
Founded in 2010, The Sunday Times Audible Short Story Award bills itself as “the richest prize for a single short story in the English language.” And indeed, the prize is major: the winner receives a cool £30,000 (no, I did not add extra zeroes.)
With judges yet to be finalized, the selection process will include a 20-story longlist announced in May 2020, a six-story shortlist unveiled in June 2020, and the winner revealed on July 2. The shortlisted stories will be published in an Audible audiobook, with included writers receiving “an extra £1,000 fee, on top of a prize payment of £1,000”. To be eligible, writers must previously have had at least one work published in the UK or Ireland by an “established print publisher or an established printed magazine”
. . . .
So what’s the catch? — because you know I wouldn’t be writing this post if there weren’t one. Well, as so often happens, it’s in the Terms and Conditions. Specifically:
To summarize this dense paragraph: simply by entering the competition, you are granting a sweeping, non-expiring license not just to Times Newspapers Limited (The Sunday Times‘ parent company), but also to Audible and any other licensees of TNL, to use your story or any part of it in any way they want, anywhere in the world, without payment to or permission from you.
This is far from the first time I’ve written about “merely by entering you grant us rights forever” clauses in the guidelines of literary contests, some of them from major publishers or companies that should know better. Sure, in this case the license is non-exclusive, so you could sell your story elsewhere–but only as a reprint, because by granting non-exclusive rights to one company, you remove your ability to grant first rights to another, at least for as long as the initial rights grant is in force.
It’s not uncommon for literary contests that involve publication to bind all entrants to a uniform license or grant of rights–so that, when winners are chosen, the license is already in place. But ideally, the license should immediately expire for entries that are removed from consideration–or, if the contest sponsor wants to retain the right to consider any entered story for publication (as TNL clearly does–see Clause 4.2, below), rights should be released within a reasonable period of time after the contest finishes–say, three or six months. There’s simply no good reason to make a perpetual claim on rights just in case, at some unspecified point in the future, you might just possibly want to use them.
. . . .
There’s a couple of other things to be aware of. Shortlisted authors enter into a 12-month exclusive contract with Audible, for which they are given a “one-off” lump-sum payment (the £1,000 noted above). But thereafter, Audible retains the right “to record, distribute and market such audio version for at least ten (10) years.” Again, this right is non-exclusive–but there’s no indication that Audible has to pay these authors for potentially exploiting their work for a decade. (If you don’t consent to these terms, you can’t be shortlisted.)
Finally, although publication is guaranteed only for the shortlist, TNL reserves the right to publish longlist and non-listed entries as well. Great! Except…there’s nothing to suggest these writers would be paid either.
PG says this is tacky to the max (but, unfortunately, not rare).
You need to read all terms and conditions whenever you submit anything you write online, be it for a contest, consideration for publishing, publishing, etc., etc., etc.
Audible should know better. PG recommends loud complaints directed to anyone you know in Amazon or anyone you don’t know who has an Amazon email address. Jeff@amazon.com is one (no, PG doesn’t know if he ever reads email that comes to this address.).
The US office responsible for patents and trademarks is trying to figure out how AI might call for changes to copyright law, and it’s asking the public for opinions on the topic.
. . . .
The office is gathering information about the impact of artificial intelligence on copyright, trademark, and other intellectual property rights. It outlines thirteen specific questions, ranging from what happens if an AI creates a copyright-infringing work to if it’s legal to feed an AI copyrighted material.
It starts off by asking if output made by AI without any creative involvement from a human should qualify as a work of authorship that’s protectable by US copyright law. If not, then what degree of human involvement “would or should be sufficient so that the work qualifies for copyright protection?”
Other questions ask if the company that trains an AI should own the resulting work, and if it’s okay to use copyrighted material to train an AI in the first place. “Should authors be recognized for this type of use of their works?” asks the office. “If so, how?”
. . . .
But it’s not always cut and dry. Already, coders have claimed authorship over the “push button” works their AI software creates, which happened earlier this year in a distribution deal Warner Music brokered with the startup Endel. “That’s where it gets more complicated,” Rosen says. “I don’t have a clear answer on that.”
As The Verge previously examined, questions like these are at the heart of ongoing discussions around AI and copyright law. It’s a downright messy subject with no clear answers. There is some basic guidance in the Compendium of US Copyright Office Practices, which says that works produced by a machine with no creative input or intervention from a human can’t be given authorship. But it looks like the Patent and Trademark Office feels this definition won’t hold up as AI’s hand in creative works continues to get more complicated and nuanced.
. . . .
But it’s not always cut and dry. Already, coders have claimed authorship over the “push button” works their AI software creates, which happened earlier this year in a distribution deal Warner Music brokered with the startup Endel. “That’s where it gets more complicated,” Rosen says. “I don’t have a clear answer on that.”
As The Verge previously examined, questions like these are at the heart of ongoing discussions around AI and copyright law. It’s a downright messy subject with no clear answers. There is some basic guidance in the Compendium of US Copyright Office Practices, which says that works produced by a machine with no creative input or intervention from a human can’t be given authorship. But it looks like the Patent and Trademark Office feels this definition won’t hold up as AI’s hand in creative works continues to get more complicated and nuanced.
The USPTO still has a copyright registration computer system straight out of 1983 (among other things, the site warns the user that any browser other than Mozilla Firefox may not work right) and now they want to figure out Artificial Intelligence.
Those lawyers who wish to become patent attorneys sometimes put in a couple of years as patent examiners at the USPTO for experience on the other side of patent prosecution, but the smart ones leave for better-paying pastures after that. PG is not aware of anything similar happening on the copyright side of the building.
That said, it’s an interesting question.
If you would like to see what artificial intelligence is doing right now (that you can see from the outside of heavily-guarded AI development labs), check out the following:
Artbreeder – https://artbreeder.com/browse – A computer will combine lots and lots of images to make new ones that sometimes look vaguely real and at other times clearly originate in another dimension.
Blackbeard went unmentioned in Tuesday’s arguments in Allen v. Cooper. But the justices plundered North Carolina’s argument that it enjoyed sovereign immunity from suit for damages for copyright infringement.
Representing petitioner Frederick Allen, who sued North Carolina for infringing his copyrights in photographs and videos documenting the salvage of artifacts from Blackbeard’s sunken flagship, Derek Shaffer used his two-minute opening to argue that when “states infringe the exclusive rights that Congress is charged with securing, Congress can make states pay for doing so.” The intellectual property clause of Article I Section 8 of the Constitution provides an “express constitutional mandate for Congress to protect specified private property rights against any and all intrusion,” thus “securing” exclusive rights against “all comers, exclusive against the world, including the government and including states.” Congress can fulfill that mandate only by abrogating sovereign immunity by statute and subjecting states to suit for their infringing conduct.
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North Carolina Deputy Solicitor General Ryan Park argued on behalf of the state. Park maintained that the Constitution preserves state sovereignty unless there is “compelling evidence that the states surrendered it when they ratified a particular constitutional provision.” Allen failed to identify any historical evidence that anyone at the founding contemplated damages lawsuits against states for copyright infringement. According to Park, state sovereign immunity limits congressional authority to expose state treasuries both to expansive liability going far beyond the due process clause and to the Copyright Remedy Clarification Act’s “exorbitant” financial remedies of up to $150,000 per infringement.
Kavanaugh and Justice Stephen Breyer questioned Park about the possibility of multiple, rampant state uses of copyrights for which the authors receive nothing, which cannot be squared with a grant of exclusive rights. Park argued that the ordinary remedy for a state violation is an injunction, which Breyer said does nothing for an infringement that occurred yesterday. Park responded that a plaintiff can bring a direct constitutional claim for truly intentional or deliberate infringement for which no alternative remedy is available—because the copyright violation would constitute a due process violation, the statutory remedy would be congruent and proportional as applied to that case. Ginsburg suggested that this case “sounds pretty intentional to me”—North Carolina was alleged to have infringed, potential litigation was settled, then North Carolina resumed identical infringing conduct. Park argued that the case involves not infringement or a copyright violation, but a dispute over the scope of the license petitioners granted to the state in the settlement and a possible breach-of-contract lawsuit.
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Ginsburg suggested that there is “something unseemly” about a state’s being able to hold copyrights and sue for infringement of their copyrights but also to say, “we can infringe to our heart’s content and be immune from any compensatory damages.” She asked whether Congress could condition states’ copyright privileges on their agreeing to be subject to suit for infringement. Park said this would create an unconstitutional condition, although he agreed that Congress could remove the anomaly by denying states the right to hold copyrights.
The ghost of Halloween past has come back to haunt Katy Perry in the form of a new lawsuit.
Celebrity photo agency Backgrid USA has sued the pop star for copyright infringement over an Oct. 29, 2016, Instagram post that features a photo of Perry in a Hillary Clinton Halloween costume, documents filed with the U.S. District Court in California on Tuesday show. Because Perry failed to license the Backgrid-owned photo before sharing it with her 80 million Instagram followers, Backgrid alleges, she hurt “the existing and future market for the original Photograph,” resulting in “substantial economic damage” to the agency.
“The Photograph is creative, distinctive, and valuable,” the complaint reads. “Because of the subject’s celebrity status, and the Photograph’s quality and visual appeal, BackGrid (and the photographer it represents) stood to gain additional revenue from licensing the Photograph.” Backgrid further alleges that Perry failed to license the photo even after the agency corresponded with her through her reps numerous times between July 2017 and October 2019.
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“Backgrid is an entertainment news agency that works closely with celebrities. As such, it is never Backgrid’s objective to litigate against celebrities,” said Backgrid attorney Joanna Ardalan.
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There is precedent for Backgrid’s suit. In recent years, a host of celebrities including Jennifer Lopez, 50 Cent, Jessica Simpson and Khloé Kardashian have been sued for posting unlicensed paparazzi photos to their social media accounts.
PG understands the copyright law underpinning the lawsuit and also understands that many celebrities like to see their pictures in various traditional and internet publications to hopefully help keep them relevant for some members of the general public.
However, PG can also understand why a celebrity who uses a photo in which she is the only subject of interest can feel a bit put out when the photog sues for damages.
Note: PG posted about this topic yesterday (See Blackbeard’s Revenge), but thought the following Wall Street Journal editorial provided a second useful perspective.
From The Wall Street Journal:
The Supreme Court has bolstered both state and property rights in recent decades, but on Tuesday it will mediate an ostensible conflict between the two. States argue they can’t be sued for copyright infringement, but sovereign immunity isn’t a constitutional license to steal intellectual property.
At issue in Allenv. Cooper is whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act. North Carolina published copyrighted video of the shipwrecked Blackbeard’s Queen Anne’s Revenge after it was discovered off the state’s coast. The state then passed a law appropriating the creator’s works into the public domain.
After the creator sued, North Carolina invoked the Supreme Court’s Seminole Tribe (1996) ruling that held Congress’s Article I powers generally don’t trump state sovereign immunity. In Florida Prepaid (1999) the Court also said Congress could not use its Article I powers to abrogate state immunity against patent infringement.
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Prior to passing the 1990 law, Congress documented a pattern of willful state copyright infringement. One state-operated nursing home copied and sold a publisher’s educational materials. The Chamber of Commerce says more than 150 copyright cases have been filed against states since 2000. That’s probably low since many small businesses lack resources to detect infringement. The Software & Information Industry Association found 77 infringements by states over six years.
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Public schools are some of the worst offenders. Georgia State University created an online system that encouraged professors to make unlicensed chapters of books available for download. Professors regularly copy and distribute texts to classes, though public universities in a brief claim there are few cases of willful infringement.
Dow Jones, which publishes the Wall Street Journal, has submitted an amicus brief in the case detailing how the California Public Employees Retirement System (Calpers) reproduced 53,000 articles from 4,500 publishers in eight years. It also distributed the articles in a daily newsletter to recipients in and outside of the pension fund. If it were a private pension fund, Calpers could be sued for hundreds of millions of dollars in damages for copyright infringement. But Calpers claimed sovereign immunity as an arm of the state and ultimately agreed to settle with Dow Jones for a mere $3.4 million and two other large publishers for $600,000.
In 1718 Edward Teach, better known as the pirate Blackbeard (or Black Beard), deliberately beached and sank his iconic ship, the Queen Anne’s Revenge. As he was doing so, he likely wasn’t thinking about how his shipwreck would become the center of a major copyright lawsuit 200 years in the future.
However, that’s exactly what happened.
It’s a weird twist of circumstances and happenings that bring us to where we are today, on the eve of what could be one of the most important copyright cases to go before the Supreme Court.
But the issue isn’t really one of copyright. Pretty much no one doubts that the work involved has been infringed, it has to do with sovereign immunity and the question of whether states can be held accountable for copyright infringement at all.
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The wreckage of the Queen Anne’s Revenge was found in 1996 by Intersal, a private salvage company. In 1998 they reached an agreement with the state of North Carolina, the state that controls the water the wreck rests in, that granted the company the right to take photos and videos of the wreck.
Intersal brought in Nautilus, a film production company, to perform the videography and capture the images and footage.
However, disputes quickly arose between the two sides and a new agreement was reached in 2013. That agreement would be short-lived as, in 2015, the state of North Carolina passed a new law that placed all images related to the excavation of the Queen Anne’s Revenge as the property of the state and made them public records.
This, effectively, removed all copyright protection from the works and, to make matters worse, the state was using the footage both on their website and their YouTube channels.
Intersal and Nautilus filed a lawsuit against the state but there was a difficult wrinkle. The Eleventh Amendment grants states what is known as sovereign immunity, which means that they can not be sued in federal courts. Copyright claims, however, can only be pursued in a federal court, creating an impasse.
Congress attempted to rectify this in 1990 by enacting the Copyright Remedy Clarification Act (CRCA), which states:
Amends federal copyright law to provide that any State, State instrumentality, or officer or employee of the State or State instrumentality is liable to the same extent as any nongovernmental entity for: (1) copyright infringement… Denies sovereign immunity to any State for such violations and provides the same remedies as are available against other private or public entities, including attorney’s fees.
North Carolina argues that the law is overly broad and that Congress overstepped its constitutional authority when passing it.
Though the plaintiffs did manage to win in a district court, the Fourth Circuit Court of Appeals agreed with the state and ruled against Intersal and Nautilus.
They appealed and now the case is scheduled to go before the Supreme Court of the United States tomorrow. When it does, it will be asking one of the most important and one of the most thorny copyright-related questions in modern history.
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First, the Eleventh Amendment grants states sovereign immunity simply reading:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
However, that immunity is somewhat limited by the Fourteenth Amendment, which was adopted in 1868, during the aftermath of the Civil War. That amendment lays down who is considered a citizen and says that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment also gives Congress the power to enforce the provisions of the amendment through the use of “appropriate legislation.”
When Congress passed the CRCA in 1990, it was essentially trying to place a limit on state sovereign immunity in order to ensure that they could be held liable for copyright infringement violates the same as any business or individual. The bill was also joined by similar laws covering patent and trademark.
In 2017, K-Mart was under fire for allegedly infringing the copyright on Rasta Imposta’s registered banana costume. In its complaint, Rasta Imposta alleges that the retailer ended its business relationship with Rasta Imposta shortly before Halloween 2017, after having sold Rasta’s banana costume for years, but began selling its own version of the banana costume, a move Rasta calls “willful disregard of [its] intellectual property rights and copyright registrations.” The parties eventually settled out of court.
Rasta filed a similar lawsuit, also in 2017, against its former business partner Kangaroo Manufacturing, Inc. after discovering that the company was selling banana costumes that closely resembled Rasta’s registered works. After the district court issued a preliminary injunction, Kangaroo filed an interlocutory appeal challenging the injunction. The appellate court affirmed the injunction and held that although the banana costume was a useful article, the costume’s artistic features (i.e., the combination of colors, lines, shape, and length) were separable and capable of independent existence, and thus were copyrightable. The court also denied the defendant’s arguments that the banana costume was ineligible for protection because of the merger doctrine and scene a faire doctrine.
Scène à faire (French for “scene to be made” or “scene that must be done” . . . is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.
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For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. The United States Court of Appeals for the Second Circuit interpreted the scènes à faire doctrine expansively to hold that a motion picture about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe.
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The policy rationale of the doctrine of scènes à faire is that granting a first comer exclusivity over scènes à faire would greatly hinder others in the subsequent creation of other expressive works. That would be against the constitutionally mandated policy of the copyright law to promote progress in the creation of works, and it would be an impediment to the public’s enjoyment of such further creative expressions. By the same token, little benefit to society would flow from grants of copyright exclusivity over scènes à faire.
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Another significant case in United States law was Ets-Hokin v. Skyy Spirits (2003), in which scenes à faire was upheld as an affirmative defense by the United States Court of Appeals for the Ninth Circuit. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodka when another photographer created advertisements with a substantially similar appearance to work he had done for them in the past. It was established that the similarity between his work and the later works of the photographer was largely mandated by the limited range of expression possible; within the constraints of a photo shoot for a commercial product there are only so many ways one may photograph a vodka bottle. In light of this, to establish copyright infringement, the two photos would have been required to be virtually identical. The originality of the later work was established by such minor differences as different shadows and angles.
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RG Anand v. M/s Deluxe Films, AIR 1978 SC 1613
The plaintiff was the writer and producer of a play called “Hum Hindustani” that was produced in the period of 1953-1955. The play was based on the evils of provincialism. The defendant in 1956 produced a film called “New Delhi“. One of the themes of the film was provincialism, too. While evaluating whether or not the defendant had infringed the plaintiff’s copyright, the Supreme Court of India held:
There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. (emphasis supplied)
Therefore, the court held that there is a standard way of dealing with the theme of provincialism, and there can be no copyright over that theme. Consequently, a question of infringement does not even arise.
Back to the appellate opinion in Silvertop Associates, Inc., dba Rasta Imposta v. Kangaroo Manufacturing, Inc., the court provided an illustration with its opinion: