Copyright/Intellectual Property

From The Copyright Alliance:

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.

Link to the rest at The Copyright Alliance

If your French is a bit rusty, per Wikipedia,

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.

. . . .

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.

. . . .

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.

. . . .

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.

. . . .

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:

 

From People:

“We’ve tried to sort this out quietly for the last two years, only asking for 5% each but were shutdown every time,” producer Justin Raisen wrote on Instagram.

Lizzo has been hit with another plagiarism accusation for her Billboard No. 1 song “Truth Hurts.”

On Tuesday, producer Justin Raisen spoke out on Instagram on behalf of himself and his brother Jeremiah Raisen, demanding partial credit for the lyric “I just took a DNA test turns I’m 100% that b****” — the most celebrated verse on the track.

Raisen shared a video in attempt to back his claim writing, “The Truth about ‘Truth Hurts.’”

The clip shows moments of Lizzo, 31, and Raisen working together in the studio on a song “Healthy” from April 2017. Lizzo croons the exact same hook as “Truth Hurts,” but in a higher pitch and without the piano in the background.

He then explained, “‘I just took a DNA test turns out I’m 100% that b****,’ was taken from ‘Healthy’ and used in ‘Truth Hurts.’ We were never contacted about being credited for the use of the parts of ‘Healthy’ (melody, lyrics, and chords) that appear in ‘Truth Hurts.’”

Raisen shared that he reached out to “Ricky Reed and Lizzo’s team about fixing it, we put the song in dispute in 2017 when it came out.”

. . . .

While Raisen is demanding action, he said, “The last thing we want to do is throw any negativity toward Lizzo’s momentum and movement as a cultural figure.”

“If we believe in what she’s preaching, believing in ourselves & our own voices is something we thought she’d understand.”

Link to the rest at People

PG doesn’t remember posting anything from People magazine before and promises it won’t be a regular occurrence in the future.

For the record, PG has no opinion about whether Lizzo is or is not a cultural figure and doesn’t know if he “believe[s] in what she’s preaching.”

From The IP Kat:

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

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

. . . .

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

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

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

. . . .

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

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

Link to the rest at The IP Kat

From The Hollywood Reporter:

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

. . . .

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

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

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

. . . .

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

Link to the rest at The Hollywood Reporter

From Plagiarism Today:

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

Link to the rest at Plagiarism Today

From Plagiarism Today:

What do Gigi Hadid, Bella Hadid, Odell Beckham Jr., Jessica Simpson, Jennifer Lopez, Khloe Kardashian and dozens of other celebrities have in common?

They are all the subject of photographs that become flash point for a lawsuit after the images were posted on Instagram without the photographer’s permission.

To be clear, not every lawsuit was filed against the celebrity. Sometimes, such as in Odell Beckham Jr.’s case, the celebrity filed the lawsuit proactively. Other times, as with Bella Hadid

, it was a designer or other entity that posted the photo of the celebrity and was the target of the litigation.

Still, one thing has become very clear. Celebrities on Instagram are big business and that big business is leading to some serious litigation. So much so that The Fashion Law has compiled an ongoing list of legal battles paparazzi photographers and those that have used their images on social media, primarily Instagram.

As of this writing they are tracking 21 cases since April 2017, barely a year and a half ago. While those cases represent only a tiny percentage of the lawsuits filed by photographers in recent years, they represent the lion’s share of the headlines and public attention.

But this raises a question: Photographers have had their work misused on social media since the days of Myspace and Friendster. Why is there a sudden spike in photographer litigation now? The reason is extremely complicated but there is one thing to definitely understand: Photographers are punching back.

. . . .

Photographers have always had unique challenges when it came to copyright and the internet. In a print world, infringement was relatively rare as part of the benefit of licensing an image was getting a clean version of it.

In the digital world, not only is infringement as easy as a mouse click but the internet has also made photography, and all visual art, seem almost transient in nature. Photography is something to be downloaded, shared and repurposed without any consideration for the person who took the image and whatever skill, time or expense they used to create it.

But while it was annoying when it was personal people sharing over social media or other non-commercial purposes, the trend in recent years is that social media is itself big business.

On Instagram, for example, “Influencers” can make one cent per follower per sponsored post. For very popular users, such as celebrities, this can be worth tens of thousands of dollars for a single post.

. . . .

However, even as the value and commercialization of social media posts have gone up, the treatment of photographers and photography has not necessarily improved. Though many on Instagram do behave appropriately, either sharing their work or images they’ve licensed, many others do not and routinely slip into behaviors that were tolerated in earlier days.

Combine this with services such as Pixsy that enable easier tracking of images and aggressive lawyers, such as Richard Liebowitz, and you have a formula where you’re seeing increased commercial infringement, better tracking of said infringements and lawyers willing to go after them.

You also have the U.S. Copyright Office that, despite severely limiting group work registrations for most creators, has bent over backwards to help photographers enabling them to register 750 works at one time instead of just 10.

Link to the rest at Plagiarism Today

From The 1709 Blog:

The makers of a ‘Grease’ spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of “fair use” in retaliation to a ‘cease and desist’ letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof ‘Vape: The Musical’  the new production “uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of ‘Grease’ and to criticise its misogynistic and sexist elements”. But Sketchworks say their argument that the play was a parody of Grease failed with Concord’s lawyers and indeed the theatre that was due to host the spoof was put off by the cease and desist letter. Sketchworks now wants “a declaratory judgment of fair use so that it may perform and otherwise exploit ‘Vape’ without further delay”

Link to the rest at The 1709 Blog

From Hugh Stephens Blog:

For a small town in British Columbia, it’s a tale of high drama and threatened lawsuits. Merritt, BC, population about 7000, is a small ranching, sawmill and tourist town situated in the Nicola Valley in the interior of the province, a 3 hour drive from Vancouver. I passed a university summer of my misspent youth there, working in the big open-pit copper mine (Craigmont) that used to be one of the mainstays of the economy. The mine is long closed and now the good citizens of Merritt use various techniques to attract visitors, such as holding an annual country music festival, (which in some years increases the population of the town some twentyfold), hosting the Canadian Country Music Hall of Fame and displaying a number of creative murals that grace various buildings around town, all tied to the country music theme. It’s a rollicking little town that has become caught up in the crossfire of a copyright controversy.

The website of Merritt’s Country Music Hall of Fame highlights the murals, all of them painted with local youth under the direction of muralist Michelle Loughery, or by Loughery herself. Loughery, who lives in Vernon, BC, in the “next valley over” (the Okanagan) has worked with youth in both Merritt and other centres to engage them in employment and trade skills training through mural work, known as the Wayfinder Project. The website of the Hall of Fame, after giving credit to Loughery, notes that

“Not only has the (Wayfinder) program served to enrich our society, but it has helped to transform Merritt into the largest country music art gallery you’ll ever visit. A visit to Merritt and you’ll find ample opportunity to pose in front of larger than life murals or your favorite country artists.”

It all sounds wonderful, but there is poison in paradise, all related to a copyright controversy. Now you might think that a copyright dispute involving the Country Music Hall of Fame might involve music, but you would be wrong. The dispute is over the murals.

The murals were painted on a number of buildings in Merritt by Loughery or by youth under her direction, over a period of several years up to 2012. The owners of the buildings were happy to contribute to a community project by allowing the paintings on the outside of their structures. As word of the murals spread, and as Merritt expanded its ambitions to become a tourist hub for country music fans, last year Merritt’s Music Hall of Fame, a partner museum with the Canadian Country Music Association, decided to have the murals appraised. According to press reports, the purpose was to place a value on the murals, in order to make it easier for the Association, which operates the Hall of Fame and its associated “Walk of Stars” (a tour of the murals and handprints in town) to apply for corporate or government funding. Appraisal is usually part of insuring something of value, a relevant consideration since probably the most famous of the murals, one of Elvis Presley painted by Loughery in 2007 (for which she secured permission from Elvis Presley Enterprises in order to reproduce the likeness), was inextricably half painted over last year by the new owners of the building on which it was affixed (the Desert Inn) much to the consternation of Loughery and the Hall of Fame.

While the Hall of Fame’s move to establish a value for the murals is understandable, a complication is that it doesn’t appear to hold the rights to them. Normally the value of a work would come from its potential re-sale value, but it is hard to imagine a work of art on a building owned by someone else having much value. Another form of value inherent in the work would be licensing fees for reproduction, and ownership of these reproduction rights appears to be the nub of the issue. When Loughery painted the murals, she did so in partnership with another non-profit, the Merritt Walk of Stars Society, which folded in 2012. Both she and the Society raised funds for the project, but Loughery was the artist of all the murals. In the case of the Elvis mural, her © 2007 is clearly marked on the work. From her perspective she was not commissioned to do the work, and even if she was, under Canadian law the copyright rests with her unless she licensed it to another entity, which she has not. As one noted law firm has described it;

“Unlike the U.S. Act, the concept of “work made for hire” does not exist in Canadian law. As a general rule, the authorship of a work made pursuant to a contract remains with the employee or contractor, even where the ownership is held by the employer. This is contrasted to the law in the U.S. where the author and owner of a work made for hire is the employer (often a corporation).”

. . . .

[I]t seems to me that it is pretty much a slam-dunk for Loughery when it comes to the copyright. She holds the rights to the murals and can control their reproduction and use even if they are painted on the walls of buildings belonging to someone else. Maybe the Society “owns” them–as an art collector might own a work of art–but the right to license or reproduce the murals surely still rests with the artist.

. . . .

I would add that to Loughery this is an important moral (and potentially legal) issue as the stars generously provided their images to her for the murals under the condition that there would be no assignment to third parties or economic gain. She feels it is her responsibility to protect that personal commitment, and is one of the reasons she has avoided monetization of the murals.

Link to the rest at Hugh Stephens Blog

PG says the takeaway for those encouraging or permitting artists to paint murals on the walls of buildings that are not owned by the artist is to forbid any artist from painting anything and call the police/sheriff/Mounties to arrest the artist for trespassing the first time the artist steps onto the property or touches a paintbrush  to a wall of a building resting on the property. The cautious property-owner may wish to install razor wire and buy or rent a pack of Dobermans to patrol the wall.

Such preventative measures should continue until the property owner acquires competent intellectual property counsel and consults with her/him/them. In all likelihood, the muralist and whoever is paying/encouraging/licensing rights to the muralist will be required to sign a well-drafted contract acknowledging that the property owner is the sole owner of the mural and is authorized to do anything he/she/it wishes with the resulting artwork, including, without limitation, painting or pasting on the building a billboard advertising Levi Garrett chewing tobacco that obscures some or all of the mural at any time in the future.

PG acknowledges that, instead of lawyers, it might be cheaper to just keep the Dobermans in place for a few generations. Perhaps a colony of copperheads could be substituted at some time in the future since they’re a bit less expensive to maintain.

And, yes, Amazon does sell razor wire and a variety of warning signs.

From IPKat:

Accommodation of new business models and technological advances has fundamentally disrupted the open source industry. Unlike on-prem solutions, which are installed in a user environment, cloud-based software remains hosted on the vendor’s servers and is accessed by users through a web browser. Because cloud-based offerings do not involve software distribution, the copyleft  effect of open source licences is not triggered.

Large cloud providers use their market power and infrastructure to generate significant revenues by offering proprietary services around successful open source projects, thus depriving such projects of an opportunity to commercialise similar services.

This has led to various licensing “experiments”, one of which is  imposing additional restrictions  on  the use  of open source software. Licence modifications effectively mean new licences being added to the open source ecosystem, a phenomenon known as licence proliferation.

. . . .

Cockroach Labs chose MariaDB’s Business Source License for its CockroachDB and included a restriction to “offer a commercial version of CockroachDB as a service without buying a license” but by also adding the following limitation:

In order to continue building a strong open source core, this restriction has a rolling time limit: three years after each release, the license converts to the standard Apache 2.0 license. Our goal in relicensing with a time restriction is two-pronged: to simultaneously create a competitive database as a service (DBaaS) while also providing a guarantee that the core product will become pure open source.

. . . .

Against this backdrop,  this post turns to  the Commons Clause, a licence condition that may be added to an existing open source licence allowing all original permissions contained in such licence, except selling the software. It also prohibits hosting or offering consulting or support services as “a product or service whose value derives, entirely or substantially, from the functionality of the software” (emphasis added). Technically speaking, the resulting licence as a whole is not an open source, but rather a source-available licence.

. . . .

As the FAQ document explains, the rationale of the Commons Clause is to incentivise investment in open source projects by preserving the rights of developers to benefit from commercial use of their work and, as well, to protect open source community from “those who take predatory commercial advantage of open source development”, but do not contribute anything back. The Commons Clause allegedly does not restrict code sharing or development. It is less permissive than non-copyleft open source licences, such as Apache, BSD, and MIT, and allows greater commercial freedom than reciprocal licences, such as AGPL or GPL.

. . . .

Indeed, Commons Clause is drafted in the spirit of a copyleft licence, thereby aiming to protect source code availability. Prima facie, therefore, it seems a better alternative to proprietary licensing and closed source, but is it really?

There are a few inherent problems in the Commons Clause. First, a concept of a “substantial derivative” is vital in determining the scope of the license, but it is not defined. The FAQ suggests that  it should be interpreted as restricting one from  “[s]elling  a product which adds only an insubstantial value to the software — such as changing the product name, changing some API or function names”. This may be helpful in a handful of use cases, but overall it seems open ended, vague and uncertain.

Another difficulty stems from the licence construct itself. Combining a known and trusted open source license with a proprietary (i.e., non-open source) rider  with unknown implications is set to cause user confusion as to licence compliance obligations as well as conforming with internal third party software usage policies.

The third argument against Commons Clause is eloquently made by the open source community. Commons Clause attached to the open source projects is likely to discourage the community from contributing to such projects because the new products made [Commons Clause is not retroactive] can only be monetised by the licensing entity.

Link to the rest at IPKat

This is of potential issue for authors because they may be using open source software for their work.

As one example, PG has used an open-source email program called Thunderbird for at least a thousand years. Both the Google Chrome and Firefox browsers are open-source.

The gravamen of the OP is that those who manage/control some open-source projects are attempting to restrict the commercial use of their projects while still representing them as open source.

One potential consequence of such an action is that a program utilizing open-source code being used by an author may suddenly be in violation of the claimed limits to the open-source license the program depends upon.

From Plagiarism Today:

30 years ago, in the summer of 1989, Milli Vanilli was one of the most important musical acts in all of the world. Their debut album, Girl You Know It’s True (All or Nothing internationally) had produced three number one hits in the United States and would go on to sell 7 million copies in the states and over 30 million globally.

It was a major feat for a band that, just a year and a half prior, didn’t really exist at all. Their rocket ride to stardom seemed too good to be true and, as we all know, it indeed was.

Within a few months, the duo would be at the center of a mammoth lip-syncing scandal. They would have their Grammy Award revoked (the only band to have that happen to) and the downward spiral would sadly end in the tragic death of one of the two members.

. . . .

Robert (Rob) Pilatus and Fabrice (Fab) Morvan met sometime in the early 1980s where they became friends

, bonding over similar experiences of growing up black in predominantly white European cities. They reunited in Munich, Germany in the later 80s and were working to make their mark as models, dancers, singers or anything they could do.

There they met German music producer Frank Farian who, on January 1, 1988, signed the duo to a contract. He had what he felt was a ready-made hit for them in the song Girl You Know It’s True and set about recording it.

However, according to Pilatus and Morvan, Farian lied and misled them, signing them on as singers but eventually deciding that they didn’t have the talent to become stars and re-recording their songs months later using studio musicians.

Though it is unclear what Pilatus and Morvan knew and when, after the swap out was made they did agree to go along with the scheme, becoming the face of the band and lip-syncing in concerts and other performances.

The album, released as All or Nothing in Europe and Girl You Know It’s True in the United States, became an instant success. It would be certified 6x platinum in the United States and five singles from it would chart, including three number ones.

The narrative many remember (or even hear) is that the entire thing began to fall apart when their background track began to skip during a concert. While this certainly did happen at a concert on July 21, 1989, it was far from the beginning or the end of the story.

Suspicions about Pilatus and Morvan were rife almost from day one. Interviewers would note their limited English skills and that often raised doubts privately about whether they had performed on the albums.

However, the concert itself didn’t actually change much. Those in attendance either didn’t notice the issue or wrote it off as a technical glitch.

. . . .

Instead, what sank the band was backstage tensions between Farian and the duo. Though the exact nature of the tension is hotly debated, it seems to be a combination of Pilatus’ erratic behavior and the duo’s insistence on singing for the next album.

For Pilatus’ part, he famously gave an interview proclaiming the band the “new Elvis” and comparing themselves favorably to musicians such as Bob Dylan, Paul McCartney and Mick Jagger. Pilatus and Morvan have long denied this saying the quote is taken out of context and owed to the band’s limited understanding of English.

On November 14, 1990, Farian announced that he had fired the duo and that they did not sing on the records. This prompted the LA Times to sit down with Pilatus and Morvan where they admitted they had lied calling the past two years of their lives “Hell”.

Link to the rest at Plagiarism Today

From Artnet News:

After more than eight years of legal wrangling over tens of millions of dollars worth of forged artworks sold through the now-shuttered Knoedler Gallery, the 10th and final federal lawsuit, over a $5.5 million fake Mark Rothko, was settled earlier this month.

The case was first filed in 2013 by the Lichtenstein-based Hilti Family Trust, which purchased the painting in 2002. After reports first started circulating around 2011 about authenticity concerns for a trove of Abstract Expressionist paintings sold through Knoedler, the trust submitted paint from their work for forensic analysis, and learned that the work was a fake.

. . . .

The settlement marks the end of a drawn-out, high-stakes legal saga that included only one case that made it to trial.

That case, filed in early 2016 by collector Domenico De Sole, a Sotheby’s board member and former Gucci executive who had also purchased a fake Rothko painting in 2004, eventually settled, but not before a string of experts laid out a damning trail of misinformation that showed how Knoedler had helped create a false story about a mysterious collector, referred to as “Mr. X,” who had amassed a trove of Abstract Expressionist paintings in the 1950s and ’60s. The story was used to explain the lack of provenance, or ownership history, of the paintings.

Forensic testing of many of the works showed that paints used to create them were not commercially available at the time the artworks were supposedly created. An investigation by the US Justice Department eventually revealed that most, if not all, of the works were created by Pei-Shen Qian at the behest of Bergantiños-Diaz in Qian’s home in Queens. The works were subjected to artificial aging techniques, including staining canvases with tea bags to make them appear older.

. . . .

Following the settlement of the 2016 trial, De Sole told artnet News that when the forensic report first came back, Knoedler officials “were insistent that this was not the case and that it was authentic.”

“My point of view was, ‘Fine, if it’s authentic, give me my $8.3 million back and I’ll walk away. Now you can sell this authentic Rothko for more than twice as much, $18 million, or whatever, and you can make a huge profit,’” De Sole said. “When they absolutely refused to do that, I knew that, one, the Rothko was definitely a fake; and two, they knew for sure that it was a fake.”

Link to the rest at Artnet News

From The Hollywood Reporter:

Eminem’s publisher Eight Mile Style has filed a major new lawsuit claiming Spotify has infringed hundreds of song copyrights and challenging the constitutionality of a recently passed music licensing law.

In a suit filed Wednesday in federal court in Nashville, Eight Mile accuses Spotify of willful copyright infringement by reproducing “Lose Yourself” and about 250 of the rapper’s songs on its service to the tune of potentially billions of dollars in alleged damages. The suit also targets the Music Modernization Act, a federal law enacted last October that was intended to make life easier for tech companies and to get songwriters paid. The suit accuses Spotify, the $26 billion Stockholm-based streaming behemoth, of not living up to its obligations under the MMA, while also making a frontal attack on one of the few legislative accomplishments during the Donald Trump presidency.

According to the complaint, a copy of which was obtained by The Hollywood Reporter, Spotify has no license for Eminem’s compositions, and despite streaming these works billions of times, “Spotify has not accounted to Eight Mile or paid Eight Mile for these streams but instead remitted random payments of some sort, which only purport to account for a fraction of those streams.”

The suit adds that Spotify has placed “Lose Yourself” into a category called “Copyright Control,” reserved for songs for which the owner is not known. Eight Mile attacks the “absurd” notion that it can’t be identified as the owner of such an iconic song, which was the centerpiece of the 2002 film 8 Mile, hit No. 1 on the Billboard Hot 100 and won an Oscar for best original song.

Link to the rest at The Hollywood Reporter

PG has no knowledge of the facts alleged by Eminem in the OP, but he was reminded of Mark Zuckerberg’s motto for Facebook: “Move fast and break things.”

https://xkcd.com/1428/

From Clash:

Billie Eilish has been forced to cancel a new fashion line after a designer involved admitted plagiarism.

The new capsule was crafted in association with Siberia Hills, and on its launch last week fans noted a t-shirt and hoodie which made use of anime character Nozomi Tojo from the Long Live! show.

The close-knit anime community soon pointed out, however, that the designs were incredibly close to previous work by Makoto Kurokawa.

. . . .

After the comparison went viral Siberia Hills had an internal discussion, with the line now being pulled.

A full message was placed on Instagram, apologising to Kurokawa and explaining that Billie Eilish and her team were completely unaware of the infraction.

They wrote: “To the talented artist Mr. M_Qurokawa, we apologize for taking from your artwork for our merchandise collaboration with Billie Eilish. Billie and her team were not aware we used your art, they just believed in the product.”

Link to the rest at Clash

PG says copyright infringement and plagiarism that, in prior eras, would likely have gone undiscovered for years, maybe forever, won’t work anymore.

Publication of creative works online effectively crowd-sources the discovery of “borrowed” or copied works to a much wider range of eyeballs than would have been possible during the pre-internet era.

From Hugh Stephens Blog:

My wife and I had just been visiting our daughter in her new home when we turned on the car radio. It was an interview on CBC with Andy Parker, whose daughter Alison had been murdered, live on TV, by a deranged former employee, back in 2015. The killer recorded and later uploaded video of Parker’s death to the internet, in addition to the live broadcast of the tragedy. The radio story was about the trials of a father who was being trolled by hate-mongers and conspiracy theorists, and about his ongoing efforts to get the videos of his daughter’s murder taken down by YouTube.

. . . .

One wonders why a corporation of this size and influence, one with such reach and the power to influence people’s lives for the better, doesn’t get it. When Parker first learned that videos of Alison’s death were circulating on YouTube, he contacted them and was informed that according to the company’s “moment of death” policy, the content could be removed. There is an online form available that states;

“If you’ve identified content showing your family member during moment of death or critical injury, and you wish to request removal of this content, please fill in the information below. We carefully review each request, but please note that we take public interest and newsworthiness into account when determining if content will be removed. Once you’ve submitted your report, we’ll investigate and take action as appropriate.”

So far, so good. But then Parker found out that he would have to flag each and every posting of the atrocity in order to get YouTube to act. Videos taken down today could be up again tomorrow, posted by people ranging from conspiracy theorists to plain vindictive sociopaths. YouTube refused to institute a blanket ban on the video, even though it had the technical means to do so. Moreover the algorithms that recommend content to viewers continue to serve up content related to the video. In frustration, Parker is now bringing a lawsuit against YouTube.

One has to ask why YouTube could not take the necessary steps to police its own content. Under pressure from copyright owners it has instituted a system of sorts that will take down all videos of a proven copyrighted work. While the system is unsatisfactory to many, at least there is a functioning system to take down copyright infringing works, as YouTube is required to do under the DMCA in order to keep its safe harbour. And there is other content that YouTube is required by law to block, and by and large it manages to do so, such as child porn, and sex trafficking. In addition, there are other forms of undesirable content that the platforms, YouTube among them, ought to block, as a matter of common sense, but here they do a poor job. Facebook’s slow-off- the-mark response to block the dissemination of the filmed violence against the mosque and worshippers in Christchurch, New Zealand, is but one example, as is the ongoing issue of hate speech and incitement to violence and terrorism as witnessed on the website 8Chan.

What really upsets Mr. Parker is that not only does YouTube require him to constantly police its site to identify postings of his daughter’s death (just as copyright owners have to spend the time to notify YouTube of infractions, although some of this is automated through ContentID), the clicks that it attracts enable YouTube to monetize the hateful video.

Link to the rest at Hugh Stephens Blog

PG understands that digital fingerprinting has reached the point where it can accurately identify specific digital content – video, audio, ebooks, etc. – with a high degree of accuracy and that, at least some providers of this service do so in a way that can’t be defeated with changes to the file hash, length, additions and deletions, etc., digital characteristics of the file. He understands that Audible Magic is a major player in digital fingerprinting.

Undoubtedly, licensing digital fingerprinting software and solutions costs money, but, particularly in situations like the one described in the OP, PG would think that YouTube might take action, if only to avoid future legislative or regulatory supervision over the company’s policies and business practices.

While many indie authors understand the Digital Millenium Copyright Act allows them to send take-down notices when someone offers their book online without the author’s consent. However, one of the significant benefits the DMCA provided online information providers like YouTube, Google, Facebook, etc., was freedom from claims by copyright holders if the online giants published copyright-protected content so long as the online publishers responded to takedown notices with reasonable speed.

For reasons that seemed sensible at the time (1998 for the US version of the DMCA), the onus of discovering copyright infringement placed on the owners of the copyright included no requirement that the online information provider notify or make it easy for the copyright holder to discover the publication of infringing copies by YouTube, etc.

PG will note that the fast-moving pace of innovation and change typical of the online world is a terrible match for the ponderous and sometimes witless process of getting legislation passed in the US and elsewhere.

Despite that unfortunate fact, PG suggests an amendment to the DMCA that permits efficient and accurate technical methods of identifying copyrighted works to be used by creators as and when they become commercially available. This would include methods for creating digital fingerprints or other tamper-resistant means of identifying protected works.

When such methods become reasonably available, online information providers would be required to check uploaded content against databases of digital fingerprints generally published or made available by third parties for the purpose of identifying infringing uses. Alternatively, copyright owners could submit digital fingerprints in a standard form directly to the online information providers so such organizations could create and host such databases themselves.

The original post is by a tenured law school professor who is a respected expert on copyright law.

PG is posting this because he suspects most of the visitors to TPV have had little or no trouble learning to read and reading as children or adults. That has been PG’s experience.

For PG, OP has some of the most approachable and understandable descriptions he has seen of dyslexia and about someone experiencing this condition.

From Matthew Sag:

If you don’t know that I am dyslexic, you really don’t know anything about me. That would not be your fault, I have spent most of my life trying to hide the fact that I am dyslexic. In fact, I used treat my ability to hide my dyslexia as a measure of how well I had overcome it. But mostly I hid for the same reason people always hide, for fear of exposure. Years of bitter experience at school and in the workforce  had taught me that if you have a learning disability, many people think you are stupid. Some of those who don’t think you are stupid think that you are just lazy or a liar instead.

Even though I knew early in my teaching career that I would have no trouble meeting the tenure standard at my school, I still worried that if my colleagues realized that I was dyslexic they would hold it against me when it came to tenure and promotion. I know other people in the academy who feel the same way, even now in 2019.

You might think that these fears are uncharitable to my colleagues, but I feared their ignorance more than their malice. When I became a tenured full professor I really did (mostly) stop worrying about what people thought. More importantly, I hope that by sharing my experiences I might offer encouragement to others coping with learning disabilities and help change attitudes towards dyslexia.

Reading with dyslexia

Dyslexia is characterized by difficulty with learning to read fluently and with accurate comprehension despite normal intelligence. American Academy of Pediatrics “Joint Statement—Learning Disabilities, Dyslexia, and Vision” 124 Pediatrics 837 (2009)

Dyslexia can mean a lot of different things. The term is used as an umbrella term for a combination of auditory, visual and attentional disorders that manifest as learning disabilities.  I can’t say what it means in general to be dyslexic, I can only say what it means to me.

My type of dyslexia is visual/attentional, but mostly visual. When you look at worlds on a page, chances are that you see words on a page. For most of my life I have had 20/20 vision, so I see the words too – but I don’t really see them. For some reason I just don’t process combinations of letters very well. I see what you see, but what I see is not very stable. The word reversals and word skipping associated with dyslexia seem to be the result of a software failure in the brain, rather than a hardware failure in the eyes. [Although the instability is more of a hardware issue than I had previously understood.]

Some common illustrations on the Internet can give you some idea of what a dyslexic might see, but they are not exactly right either. (These two are from the Irlen website)

The best way I can explain it is that when I read a word, I can only process two or three letters at a time. A word like “detection” becomes

de – et – te – ct – ti -io – n

But I compensate by sort of flitting over the words so “detection” might actually be more like

det – [bla] [bla] [some kind of tall letter] [bla] – ion

Defection! That sounds like an interesting book, … why is it all about detective stories?

It took me a long time to learn to read. When I was in grade one I would chose my books for quiet reading time on the basis of which ones had the most pictures. I would figure out one or two words per page and then just make up the rest of the story. Even when I supposed to read out loud I found that making things up was pretty good substitute for actually reading.

All through primary school, my reading age lagged my actual age by two or three years. This confused my teachers because I seemed to have “normal intelligence” and my vocabulary was quite strong. I did the usual range of remedial exercises and vision therapy (this mostly involved crossing my eyes and making red and green circles come together). These things helped a bit but I still read poorly, and only when forced. [I recently did some more vision therapy and found it quite helpful. I had not realized how much vision had destabilized since I was a teenager, but it still was not the cure that some hold it out to be.]

In year seven, thanks to the loving tyranny of the diminutive Mrs. Johnson, I realized that I had to start reading. The first book I read was Battlestar Galactica, not a literary masterpiece but easy to follow since I had already seen all the TV episodes more than once. I spent weeks reading Battlestar Galactica at the glacial pace of about 10 pages an hour. After that I very slowly worked my way through my older brother’s sci-fi collection. I loved the escapism, but reading gave me a kind of dull headache and left me exhausted.

Reading in color

In year eight (the first year of high school in Australia) my English teacher told me that my written work showed that I was either stupid or lazy. He then explained that he could see (I am not exactly sure how) that I was not lazy and that he knew from my standardized testing (I was always good at multiple choice tests) that I was not stupid. My new school’s special education teacher referred my on to a psychologist who tested me for “scotopic sensitivity syndrome” also known as Irlen syndrome. The psychologist ran me through a battery of tests and then we spent about two hours trying different colored lenses while doing yet more tests to see which color worked best for me.

Reading with colored lenses was, and remains, a totally different experience. I began to read much more quickly and without headaches. By year 11 I had transformed from a C student in everything but math to an A student. Colored lenses have not cured my dyslexia, but they make it manageable. I still have a shorter than average span of visual focus and words still tend to swim around on the page, but now it is more like

det -ect-ion

vs.

de – et – te – ct – ti -io – n

How do colored lenses help? Do they really help at all?

This is very difficult to explain. Irlen syndrome and the associate Irlen colored lenses are controversial. According to the American Academy of Pediatrics, “Joint Statement—Learning Disabilities, Dyslexia, and Vision”

“Most experts agree that dyslexia is a language based disorder. Scientific evidence does not support the efficacy of eye exercises, behavioral vision therapy, or tinted lenses.”

There are studies showing the effectiveness of colored lenses, but the American Academy of Pediatrics does not think that much of them. I wear non-tinted lenses for social activities that don’t involve reading. When I forget to change back to my tinted lenses all my old symptoms come back. This is as close to proof as you can get that colored lenses work for me and that this is not just a placebo effect. On the other hand, it also seems clear that these lenses don’t work for everyone. Likewise, vision therapy is great for some people, but again, may not work for everyone.

What is it like to be dyslexic?

People who know me now think of me as confident, perhaps even a little brash. I did well at university and as a lawyer, but have only really excelled as an academic. I have published in Nature and many of the top U.S. law reviews (California, Northwestern, Georgetown, Notre Dame, Iowa, Vanderbilt, Ohio State, …) and I receive great teaching evaluations. So, yes, I am fairly self-confident — though not confident enough to leave these achievements unstated.

I have not always been so self-assured. For most of the time I was in school I my greatest intellectual aspiration was to be normal or average. I told myself that I was average and that it was just my dyslexia that held me back. For a long time this anchored my self perception, to the extent that when I started excelling in high school I wondered why 95% of my classmates were below average. I did not know about Bayesian inference then.  When my sister told me that I would never get the grades to get into law school I resented her because even though I was determined to prove her wrong, I also thought deep down that she was right.

Being dyslexic means being misunderstood, dismissed and underestimated. I was almost held back at the end of third grade. I failed the recorder in year 8. I always did poorly in English when it was graded on in class exams and then I was accused of cheating when I handed in high quality short stories and essays that my mother typed for me. [Thanks mum!]

My grade seven teacher asked me once, how do you expect to get a job if you can’t spell? I had just read Isaac Asimov’s Foundation where one of the characters  dictated into her screen and the words appeared in her own handwriting, so I pronounced that by the time I entered the workforce computers would spell for us. It actually only took until I was in year 12. I love words and I love language, but if not for spell check I probably would have become an accountant.

I am still a terrible speller, especially when writing by hand. Spell-check has made my life possible, but even without it, there is something about the muscle memory of typing that works better than the fine-motor skills required for handwriting. My spelling embarrasses me. Even today, I will do almost anything to avoid letting other people see my handwriting. If I have to write a card I usually type it on my computer and then carefully check each word.

When I write on the whiteboard in class I know that my students can see how poorly I spell and that I often write words out of sequence and then add in the missing letters. This used to be excruciating (a word I would never try to write on the whiteboard), but I try to think of it as a demonstration of how amazing I must be to be a successful law professor with this kind of spelling ability.

Proud to be dyslexic

Not all differences are defects. I grew up thinking of dyslexia as a problem to be overcome, a disability that was holding me back. It took me a while to realize that dyslexia is also a gift. I am a bad speller and my attention to detail is inconsistent. On the other hand, I am a great problem solver and and excellent generalizer. I can grasp general patterns based on what seems like insufficient data to most people. I am usually the first person in a movie theatre to get the joke. I also have great listening skills. When I was 26 I moved to the United States and studied for the California bar exam purely by listening to audio tapes from a cramming course. Life with dyslexia is an obstacle course — it is frustrating at times, but there are benefits if you can learn when to avoid and when to overcome. Dyslexia has made me creative and resourceful; it has also pushed me into a career path where these faculties are valued more than penmanship and spelling.

Link to the rest at Matthew Sag

As a bonus, Professor Sag makes available a collection of copyright materials he uses in his classes. You can find downloadable copies of Extended Readings on Copyright HERE. Note that the MS Word version of this document is 834 pages long (yes, PG did download it). Note further that Extended Readings on Copyright is available under the generous terms of the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) license.

From The IPKat:

‘Going down’ is a common English phrase whose meaning is descending or sinking. But when it tried to be registered as a trade mark for some sex-related products in China, it encounters the issue whether such a phrase leads to a bad influence on morality.

Similar to Article 7(1)(f) EUTMR, Article 10 (8) of the PRC trade mark law prevents a mark from registering if it is harmful to socialism morality or has other bad influence.

In its recent decision (here, in Chinese), the Beijing High Court affirms that ‘going down’ is a trade mark that causes bad social influence when it is designated for sex-related products.

. . . .

The trade mark office of the PRC refused the application because it held that the pronunciation of ‘going down’ is identical to that of Chinese words ‘够淫荡’ (pronounced as ‘Gou Yin Dang’ and translated to English is ‘enough to be lascivious’). This sexual implication of the trade mark harms Socialism morality and causes negative social influence. It shall then not be registered in accordance with Article 10 (8) of the PRC trade mark law.

. . . .

The applicant filed an appeal to the Beijing IP Court. Not siding with the trade mark office, the Court held that ‘going down’ is a regularly used phrase whose meaning is ‘descending or sinking’. The English words themselves have no immoral meaning, and the relevant public will not generally relate ‘going down’ to ‘够淫荡’. Thus, the use of the sign for the designated goods would not cause bad influence. Such a trade mark can be registered.

. . . .

Unsatisfied with the judgement of the Beijing IP Court, the trade mark office filed an appeal to the Beijing High Court. The Court sided with the trademark office and held that ‘going down’ is a trade mark that causes bad influence. The Court reasoned as follows:

1. What is a trade mark that causes other bad influence? 

A sign could be held to be a trade mark resulting in bad influence if it or its constituent element(s) may cause a negative influence on public interests and public order. The term ‘other bad influence’ in Article10 (8) of the trade mark law is used to refine an absolute ground to refuse the registration of a trade mark. The ‘other bad influence’ shall not be interpreted in an unduly broad way to restrict the freedom of expression and creativity. Nor shall it be interpreted in an unduly narrow way to allow the registration of a trade mark which has a negative effect on political, economic, cultural, religious and ethical public interests and orders.

2. Has ‘going down’ an immoral meaning?

The words ‘going down’ (phonetically) have immoral, negative and low-taste meaning when it is used for the designated goods such as vaginal syringes, condoms, non-chemical contraceptives and sex dolls, although the literal meaning of these words is ‘descending or sinking’. The trade mark office’s decision shall be upheld for the purpose of leading the public to build a positive mainstream culture and value; of prohibiting the act of meeting the ‘three forms of vulgarity’ (inelegant, indecent, and insipid) in a way of ‘play edge ball’; and of realizing the judiciary’s duty to preserve and pass on mainstream awareness and value.

3. Is ‘going down’ causing bad influence?

A trade mark is a commercial sign attached to products that disseminate to the public. In addition to distinguishing goods and services from others and bearing reputation, a trademark can also disseminate value and culture. A trade mark’s influential power and contact in the public are wide and uncertain. The cultural taste and the value represented by a trade mark would be widely disseminated through the use.

. . . .

In addition, the decision of the Beijing High Court briefly states that the freedom of expression and creation may play a role in trademark law. In this case, it relates to the assessment of whether a trade mark could cause bad influence. This statement echoes the recent decision of the Supreme Court of the US in Lancu v. Brunetti and the opinion of the AG Bobek in Constantin Film Produktion v. EUIPO. Both of the cases address the freedom of expression and creation and the trade mark consisting the immoral elements or words. The US Court directly claims that prohibiting registration of a trademark consisting of or comprising immoral or scandalous violates the First Amendment (free speech clause). In EU case, AG Bobek holds that the freedom of expression as a fundamental right does play in the field of the trademark. It is still waiting for the decision of the CJEU on the EU’s position on the freedom of expression and trade mark law.

. . . .

Lastly, it is also worth to mention that the Beijing High Court recognizes a potential new function of a trade mark, namely, disseminating culture and values. As argued by the Court, with the distribution of goods attaching a trade mark, the culture and value represented by the trademark could be also disseminated. If a trade mark disseminates a low-taste or inferior culture, it shall harm the society or public morality.

Link to the rest at The IPKat

A couple of months ago, the US Supreme Court struck down a law barring the registration of vulgar trademarks.

From The New York Times:

The Supreme Court on Monday struck down a federal law barring the registration of “immoral” or “scandalous” trademarks, saying it ran afoul of the First Amendment.

. . . .

The trademark case concerned a line of clothing sold under the brand name FUCT. When the case was argued in April, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”

She gave examples. Government officials have granted trademark protection to antidrug messages but not to “Marijuana Cola,” to pro-religion messages but not to “Madonna” wine and to antiterrorism messages but not to “Baby Al Qaeda.”

The decisions were understandable, Justice Kagan wrote. “The rejected marks express opinions that are, at the least, offensive to many Americans,” she wrote.

. . . .

But a bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.

In 2017, addressing a companion provision in the trademark law, a unanimous eight-justice court struck down a restriction on trademarks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”

The decision, Matal v. Tam, concerned an Asian-American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all of the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

Link to the rest at The New York Times

From The Economist:

The thorniest question in popular music at the moment is this: who owns a melody? This week two court cases addressed the issue. In California, a jury decided that Katy Perry’s song “Dark Horse” had plagiarised the beat of “Joyful Noise”, a track by Flame, a Christian rapper. Meanwhile the European Court of Justice (ECJ) ruled in favour of Kraftwerk, a pioneering German electronic-music group, in their 20-year-long case against Moses Pelham and Martin Haas. The hip-hop producers had used a two-second sample from Kraftwerk’s “Metall Auf Metall” in the song “Nur Mir” without seeking permission. The ECJ decided that any recognisable sample from a recording should only be used if the original producers had authorised it. Modified, unrecognisable samples could still be used without authorisation, the court clarified.

In 1991 sampling in America—the home of hip-hop—was forever altered by Grand Upright Music Ltd v Warner Bros Records, a federal court case. Grand Upright Music successfully argued that Biz Markie, a Warner artist, should not have taken a sample from the Gilbert O’Sullivan song “Alone Again (Naturally)”. Since then, American artists have had to seek permission from the copyright holders before using excerpts of a record (or take care to sample from records so obscure that no one will notice). The immediate effect was that songs built around samples became prohibitively expensive to make, but artists and producers soon found a way around the restrictions: they would simply recreate the relevant section of music with new musicians, paying the original songwriters for what was, in effect, a miniature cover version, but without having to pay a licence fee.

. . . .

With only 12 notes in a chromatic octave, the quest to find new ways to construct melodies in pop songs has become ever harder. And new songs are studied ever more closely for their resemblance to records of the past, even when they don’t rely on samples. Ms Perry was merely the latest artist at the centre of a copyright case. A controversial ruling in 2015 found that “Blurred Lines”, a hit song by Robin Thicke released in 2013, had plagiarised Marvin Gaye’s “Got To Give It Up”, released in 1977. The judgment seemed to be based primarily on the style of the songs, rather than any similarity in melody, harmony, rhythm or lyric. The five writers of “Oops Upside Your Head” (1979) now collect 17% of the publishing royalties of Mark Ronson’s “Uptown Funk” (2014) after filing a legal action in 2015. Ed Sheeran settled a copyright infringement claim against him in 2017; Taylor Swift listed Right Said Fred as writers on her song “Look What You Made Me Do” as it made melodic reference to “I’m Too Sexy” (1991). The landscape of songwriting credits has been irrevocably altered.

Link to the rest at The Economist

From BoingBoing:

[T]here’s another source of public domain works: until the 1976 Copyright Act, US works were not copyrighted unless they were registered, and then they quickly became public domain unless that registration was renewed. The problem has been to figure out which of these works were in the public domain, because the US Copyright Office’s records were not organized in a way that made it possible to easily cross-check a work with its registration and renewal.

. . . .

Enter the New York Public Library, which employed a group of people to encode all these records in XML, making them amenable to automated data-mining.

Now, Leonard Richardson (previously) has done the magic data-mining work to affirmatively determine which of the 1924-63 books are in the public domain, which turns out to be 80% of those books; what’s more, many of these books have already been scanned by the Hathi Trust (which uses a limitation in copyright to scan university library holdings for use by educational institutions, regardless of copyright status).

Link to the rest at BoingBoing and thanks to HM for the tip.

PG notes that BoingBoing has a less than sterling reputation for accuracy in reporting, but thought the possibility that this item might be correct was interesting.

From Plagiarism Today:

The narrative around plagiarism is often extemely simplified: There is a plagiarist and there is a victim.

It’s a simple and compelling narrative. There is a bad person that has stolen or lifted from a good person by using their work without the decency of at least giving them proper credit.

It’s a visceral and personal kind of theft, one that often feels more akin to identity theft than copyright infringement (which is the most common legal consequence, when there is one). Victims of plagiarism have every right to be angry and upset and society is right to throw support behind them.

However, simple narratives rarely tell the full story, especially with an issue as complicated and nuanced as plagiarism. Focusing as heavily as we do on the plagiarism direct victim not only misunderstands the nature of plagiarism, but risks giving a free pass to certain kinds of “victimless” plagiarism.

The truth is that there isn’t just one victim of most plagiarisms, there are two and it is time for that second victim to stand up and be heard. After all, they’re the ones being most directly lied to and the ones that may not realize they’re being misled at all.

. . . .

Plagiarism, at its most fundamental level, is a lie. It is the taking of works or ideas of others and passing them off as your own, either directly or indirectly. The misdeed itself is in the lie, the “I created this” when it is known to be untrue.

However, that lie isn’t being told to the original victim. It’s a lie about the victim, claiming that they didn’t create it or their contributions didn’t matter, but it’s not a lie to them. Instead, it’s a lie to the audience, which is the second victim and the actual target of the con.

A plagiarist doesn’t hope to fool their source. They know the source will recognize their work and plagiarists will often go to great lengths to hide their falsehoods from those they lifted from.

Instead, plagiarists attempt to fool the audience. They are trying to deceive whatever their target audience is whether that’s just one teacher in a classroom or the world at large. They are saying to that audience “I created this” and hoping that the audience trusts them and believes it even though it is untrue.

. . . .

There are two problems with putting so much emphasis on the original victim of plagiarism when discussing it:

1. It ignores the intent of plagiarism. Plagiarists don’t aim to steal from others, but to fool an audience. They want to have created something without putting in the work. It was never about the victim.
2. It excuses a wide variety of plagiarisms, even if the deception is exactly the same or even worse.

A good example is an essay mill. If a student buys a paper from an essay mill and submits it, the deception is the exact same as if they’d copied the paper from Wikipedia. The only difference is that the plagiarist went to much greater lengths to obtain the work and hide their misdeed. The plagiarism is no longer impulsive and stupid, but cold and calculating.

Yet, many ignore this or call it something other than plagiarism. The student is still presenting the work of someone else as their own. It doesn’t matter if the original author gives their approval, the fundamental lie is unchanged and there is still a very real victim.

. . . .

Expressions such as “Plagiarism is the sincerest form of flattery” not only trivializes the act of plagiarism itself, but omits the fact, depending upon the nature of the plagiarism, many other people were likely lied to and deceived.

Link to the rest at Plagiarism Today

This is a companion post to the one that appears immediately below this one in the grand march of thoughts and opinions that is The Passive Voice.

From The Authors Alliance:

The bill has a laudable goal: reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. For many independent authors, creators, and users of copyrighted content, copyright litigation in federal court is not worth the candle; the high cost of litigation keeps many independent authors and creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the deeply flawed CASE Act isn’t that. While failing to limit the tribunal’s scope to the types of claims and claimants that it’s best suited to and allowing recovery of excessive damages, the small claims process as set out in the CASE Act would also cause harm to many legitimate users of copyrighted works, including authors, educators, and other creators.

. . . .

The CASE Act’s small claims tribunal isn’t limited to those independent authors and creators who need it most.

The copyright holders who most need, and would most benefit, from a small claims process are those independent authors and creators who can’t afford to press their claims in federal court. Unfortunately, instead of limiting the small claims process to those independent copyright holders that really need access to this kind of forum to enforce their copyrights, the CASE Act opens the door widely, welcoming in large corporations, corporate assignees, and entities that buy up others’ copyright claims and profit from litigation.

We’ve already seen how copyright trolls and big content companies have sometimes abused the federal court system to raise questionable infringement accusations and threaten those accused with high statutory damages. By not limiting enforcement through the small claims process to individual creators, the CASE Act makes it even easier for these entities to get quick default judgments and disproportionately high damages awards. Absent enough protections for accused infringers and reasonable limits on damages, the CASE Act would invite more abusive litigation tactics by copyright trolls and opportunistic claimants while cluttering up the docket with cases that should be resolved elsewhere.

. . . .

The CASE Act’s “default judgment mill” favors sophisticated actors over independent authors and creators.

The CASE Act’s opt-out provision doesn’t provide independent authors (whether claimants or defendants) enough protection. Under the CASE Act, if someone accused of infringement fails to opt-out of the small claims process within 60 days of receiving notice of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award her damages. This judgment can then be enforced by the claimant in federal court. While this opt-out procedure is supposed to provide some protection for the accused, there’s a strong likelihood that authors, educators, and small creators without sophisticated legal knowledge or representation may not fully understand the implications and may ignore the notice – ending up on the hook for substantial damages awards without a meaningful opportunity to appeal. This quick and easy way to obtain default judgments is likely to create a “default judgment mill,”where big content companies and copyright trolls can churn out a mass of default judgments and high damages awards against unsophisticated individuals.

. . . .

The CASE Act’s statutory damages framework invites abuse.

There may be a role for a reasonably statutory small framework in a small claims tribunal when damages from infringement are difficult or impossible to prove. However, while substantially lower than the statutory damages available in federal court, the CASE Act’s statutory damages are still excessively high and are available in all cases. Under the CASE Act, claimants who timely registered their works can request up to $15,000 per work infringed, with a total limit of $30,000 per proceeding. Those who failed to timely register their works can request up to $7,500 per work infringed, with a limit of $15,000 per proceeding. As copyright law experts have pointed out, in federal court, the availability of excessive statutory damages has made it easy for unscrupulous plaintiffs to intimidate and extract settlements from individuals accused of infringement. Faced with the risk of a high statutory award, many defendants opt to settle, even when they have a valid defense. And without standards to guide those awards, copyright litigation is an unpredictable venture. With lower barriers for plaintiffs and a disproportionate statutory damages framework, the CASE Act could make these problems even worse.

As concerned scholars have noted, The CASE Act’s statutory damages framework won’t just harm defendants, though. It will also create an incentive for sophisticated or well-resourced defendants to strategically opt out of the small claims process when they think the claimant won’t be able to pursue her claim in federal court. This would undermine the CASE Act’s core objective, returning independent authors and creators to today’s unsatisfactory status quo.

. . . .

The Copyright Office probably isn’t the right place for a copyright small claims court.

A tribunal within the copyright office, designed to serve copyright claimants, and with officers selected and recommended by the Register of Copyrights may end up friendlier towards copyright claimants, and less receptive to arguments that a contested use is legitimate or qualifies as fair use. In concert with the limitations on appeal of tribunal decisions, this could create a forum inclined to issue more favorable judgments for big content companies and other copyright claimants, and in the process, harm those authors, educators, and creators defending their right to use copyrighted works.

Authors Alliance founder and law professor Pamela Samuelson points out that placing the tribunal within the Copyright Office could also run afoul of the United States Constitution. The United States Supreme Court has repeatedly stated that infringement claims belong in the federal courts. Placing some copyright infringement claims in an administrative forum may be unconstitutional under Supreme Court precedent.

Link to the rest at The Authors Alliance

From PetaPixel:

The CASE Act, a major piece of legislation that would introduce a small claims court for copyright infringement cases, has officially been passed by Senate Judiciary Committee, clearing the way for a full vote on the Senate floor.

This is a major step forward for the copyright legislation, which was introduced by a bi-partisan group of senators from Louisiana, North Carolina, Illinois and Hawaii. As of now, defending your copyrights means taking your case to federal court—a complicated and expensive proposition. If passed, the CASE Act would remedy this by establishing a small claims tribunal within the U.S. Copyright Office, making it much easier and cheaper to defend your copyrights in court.

The unappealable court would be staffed by three full-time “Copyright Claims Officers” appointed by the Librarian of Congress, who would be allowed to assign damages of up to $15,000 per infringed work, and up to $30,000 total.

. . . .

The Copyright Alliance issued a statement commending the Senate Judiciary Committee for taking this step, writing:

We thank the members of the Senate Judiciary Committee, and especially the bill’s original co-sponsors […] for passing the CASE Act out of Committee today and for making it a legislative priority, one that will benefit hundreds of thousands of U.S. photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers.

We look forward to working with the Senate and other stakeholders as the CASE Act moves to the Senate floor and moves forward in the House of Representatives.

. . . .

Meredith Rose, Policy Counsel at the public interest non-profit Public Knowledge, told Billboard that the bill as it stands does not involve appropriate oversight.

“[The CASE Act] lacks meaningful opt-in consent for all parties, structural safeguards against abuse, and legal accountability through a right of appeal,” said Rose. “The bill would allow an unappealable tribunal to assign damages of up to $30,000, or nearly half the income of the average American household. A tribunal with that kind of punitive power must be accountable.”

Link to the rest at PetaPixel

PG thinks a Small Claims Copyright Court is a good idea, but should include strong provisions to prevent abuse.

A great many people don’t understand what a copyright protects and, given the existence of crazy people, PG is concerned that legitimate authors might be on the receiving end of “You stole my idea” sorts of lawsuits.

PG thinks the existence of such a law would make it even more important for authors to register their copyrights as soon as their book is finished to establish the nature and timing of their creations.

While the passage out of a Senate committee is an important step in creating such a law, it still has to pass through several other stages in the Senate and House of Representatives and be signed by the President before it becomes a law.

For those who would like more information, Wikipedia has a brief description and links to some opinion pieces, pro and con, concerning the CASE Act.

Below is the original Senate CASE Act. PG was not able to determine with a quick search what changes, if any, were made in the Senate Judiciary Committee prior to the legislation being approved there.

Senate CASE by Michael Zhang on Scribd

From Internet Cases:

Plaintiff, a professional photographer, sued defendant company and an individual who was its “registered agent and … officer, director, manager, and/or other genre of principal” for copyright infringement over two photographs that appeared on the defendant company’s website. The infringement claims against the individual defendant included one for vicarious infringement.

The individual defendant moved to dismiss the vicarious infringement claim. The court denied the motion.

One “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). “In order to establish vicarious liability, a copyright owner must demonstrate that the entity to be held so liable: (1) possessed the right and ability to supervise the infringing activity; and (2) possessed an obvious and direct financial interest in the exploited copyrighted materials.” Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 (4th Cir. 2002).

In this case, plaintiff alleged that the individual defendant controlled nearly all decisions of the company and was the dominant influence in the company.

. . . .

As a principal of the company, the individual defendant’s financial interests were intertwined with the company’s. Therefore, the individual defendant had a direct and obvious financial interest in the company.

Link to the rest at Internet Cases

PG suspects this is a case with a backstory that is more interesting than that described in the pleadings.

As a general proposition, one of the benefits of a corporation, limited-liability company (LLC) or limited-liability partnership (LLP) is that the business entity protects individuals who are acting in the name of the entity and within the scope of the entity’s business operations from being sued in their individual capacity for debts or obligations of the entity. Anyone with a claim against the entity must look to the assets of the entity to satisfy that claim instead of the personal assets of the officers/directors/partners/employees, etc.

If a limited-liability entity is operated as a shell with no assets from which to satisfy any sort of meaningful claim for business debts, a court may permit a claimant to sue the entity’s owners directly. This is sometimes called “piercing the corporate veil” in a legal context.

The copyright infringement claim against the individual owner/controlling person described in the OP is what caught PG’s attention.

Unlike most species of personal or business debts or other claims against a person or business, Section 504 of the United States Copyright Act provides for the potential for statutory damages which can help to avoid an argument about how much the reasonable royalties for the infringing use of the creator’s work might have been.

In a case such as that described in the OP, the fight over the appropriate amount of damages would likely be the most difficult and expensive part of the litigation if the infringer wanted to put up a fight.

Section 504 statutory damages are often between $750 and $30,000 per work, as determined by the court.

However, the damage amount can be increased up to $150,000 per work if the infringement is found to be willful (intentional). If the infringement is “innocent,” meaning the infringer did not know they were violating copyright law, the damages can be reduced to a minimum of $200 per work (if the work did not contain a proper copyright notice).

There is one important precondition for Section 504 damages, however. In order to qualify, the work that is the basis of the infringement claim must be registered with the US Copyright office (1) within three months of publication of the work, or (2) before the infringement starts.

See a more detailed but easy-to-understand description of Section 504 damages at The Copyright Alliance.

For indie authors, it’s a good idea to include copyright registration as one of the checklist items when the author releases a new book. For books, it’s a simple task that should not require an attorney.

Here’s a link to the Registration Portal for the US Copyright Office. Here’s a link to an online Form TX for non-dramatic literary works that includes detailed instructions.

In most cases, the Registration Portal is the easier and faster way of submitting Form TX or another standard copyright form. The Registration Portal will walk you through the process of selecting and filling out the appropriate form, then submitting the completed form electronically to the Copyright Office.

If an indie author has released books without registering their copyright to those books in the past, registering them after publication is still a good idea. As stated above, statutory damages can be awarded if the books were registered before infringement by a particular party began.

Also, it is important for indie authors to include a copyright notice in their books. This is inserted semi-automatically by Amazon and other online booksellers as part of the upload process.

Here’s an example of a copyright notice:

© 2019 John Doe

Here’s a link to a US Copyright Office Circular discussing copyright notices.

IMPORTANT NOTE for visitors from countries other than the US – PG’s discussion of infringement, penalties for infringement and copyright registration benefits and processes are applicable only to US copyrights and their infringement in the US.

There are two principal international copyright treaties/conventions – the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention (UCC) which can provide an author who is a national or domiciliary of a member country or works first published in a member country with protections against copyright infringement and rights to pursue infringers for damages or other remedies. The US and many other western countries are members of these conventions.

From The Illusion of More:

There I was reading a perfectly interesting article by Sarah Jeong on the potential hazards of selling one’s personal data, when she took an incomprehensible—if mercifully brief—detour into the realm of copyright law.  She presents a reasonable enough case that the companies now offering to help us “broker” our private data (e.g. health information) may be counting on the fact that, “There’s no legal property right to personal data.  Once personal data is gathered, it’s out there for anyone to buy and sell. At the moment, there are no legal grounds to demand compensation for use,” Jeong writes.

Fair enough.  It is certainly true that the whole prospect of selling private data, even if it were a good idea, does implicate a relatively novel legal framework.  And while I am personally inclined to agree with Jeong that the whole notion is fraught with hazards, I am at a loss to understand where she is going with this interjection …

“In any case, we already know what happens when property rights get slapped on information, because we’ve already done it, to some degree, in copyright law. 

Giving people ownership of their creative expressions means they can buy and sell them on the open market. The risk is that an artist will wind up, like Taylor Swift, alienated from her own work because she no longer possesses the masters of some of her earlier recordings.”

Swift in late June stated publicly that she was very disappointed to learn that mega-star manager Scooter Braun will be acquiring Big Machine Label Group, which still owns her master recordings dating back to the start of her career.  Swift calls the prospect of being under contract to Braun her “worst nightmare,” and for the sake of this post, we will take her word that he is an “incessant manipulative bully” because digging into that backstory could not matter less to Jeong’s ham-fisted allusion to the supposed problem with copyright.

Even more bizarrely, Jeong happened to pick an artist who has adamantly defended both her own rights and those of much smaller artists, and who told Rolling Stone in 2014, “Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.”  So, I’m just spitballing here, but maybe Swift did not recently do an about-face on the purpose of copyright, or even abandon all prospect of working with labels, so much as she was just saying she really does not like Scooter Braun.

Turning to Jeong’s implications about the nature of copyright, it is clear that she should refrain from the topic altogether.  For one thing copyright does not “slap property rights onto information.”  Quite the contrary.  There is in fact a long history of statutory development and caselaw that makes it very clear that information is not the subject of copyright.  Expression is the subject of copyright, but the way Jeong slaps these two sentences together makes it seem as though information and expression are the same thing—especially in the context of an editorial that is all about data, which has no resemblance to expression.

. . . .

[M]y friend Neil Turkewitz observes …

“If property rights are the model, then Silicon Valley’s dismal track record on intellectual property rights is a giant red flag that simply vesting property rights is of little consequence to the extent that such property rights are essentially unenforceable — particularly for individuals. Since the dawn of the internet, notwithstanding their legal rights, creators and innovators have had to endure an avalanche of illegally available copies of their works online.”

Link to the rest at The Illusion of More

From The Telegraph:

An iconic Ferrari has been recognised by an Italian court as a work of art, in an unprecedented judgment that will protect it from reproductions and imitations.

The Ferrari 250 GTO is acclaimed as the world’s most valuable classic car, with one example selling at auction last year for $48 million (£38 million).

Regarded as the Holy Grail of classic cars, just 36 of the models were made, between 1962 and 1964.

All 36 are believed to survive and each now has its own unique history.

An Italian commercial tribunal in Bologna has recognised the model not only as a classic, but as a work of art that is entirely original and must not be imitated or reproduced.

“It’s the first time in Italy that a car has been recognised as a work of art,” a Ferrari spokesperson told The  Daily Telegraph from the company’s headquarters in Maranello in northern Italy. “It’s not just its beauty that makes it special – it also has a long racing history.”

The judgment was handed down by the tribunal in Bologna after Ferrari complained that a company in the northern city of Modena was planning to produce 250 GTO replicas.

Link to the rest at The Telegraph

From The Wall Street Journal:

The Supreme Court ruled 6-3 Monday that the government may not deny registration to trademarks it deems “immoral or scandalous,” finding that the Patent and Trademark Office violated the First Amendment when it applied such criteria to brand names.

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys,” Justice Elena Kagan said, summarizing the court’s opinion from the bench. “The First Amendment does not allow the government to penalize views just because many people, whether rightly or wrongly, see them as offensive.”

All nine justices agreed that the government had no business deciding what images or words were immoral and thus excluded from the benefits of trademark registration. But three said the ban on scandalous trademarks could serve a legitimate purpose in withholding legal protection from vulgarity and profanity.

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

From The Art Newspaper:

While the Barnes Foundation continues a $100m funding campaign towards its centenary celebrations in 2022, two smaller transactions—a $98,000 auction of objects and a $100 lease of its former suburban headquarters for 30 years—raise questions about the institution’s commitment to the legacy of its founder, Albert C. Barnes.

The foundation made waves in 1990 when its president proposed selling off Post-Impressionist paintings from its collection in defiance of the rigorous instructions left by Barnes before his death in 1951. This indenture of trust banned sales of works, any changes to the unique displays and even colour reproductions of the art. It also stipulated that the collection must limit public admission to Saturdays and be open “exclusively” for students during the week.

The Montgomery County Orphans’ Court overruled the indenture in 2004, permitting the Barnes’s controversial move in 2012 from its original home in Lower Merion, Pennsylvania, to a new $150m building in downtown Philadelphia, open to the public six days a week.

In March this year, the Pook & Pook auction house in Downingtown, Pennsylvania, offered 156 lots of around 430 objects that had belonged to Barnes and his wife Laura. The lots included furniture, clocks, textiles and porcelain objects, and hammered at $98,000 in total. One attendee dismisses the items as minor material—“the cleaning out of an office”. There was a “hush-hush atmosphere”, she says. “I think they’re worried it’s going to get out that they’re selling everything but the wallpaper.”

. . . .

The foundation issued no press release about the sale, which was publicised by the online auction platform Bidsquare, and no catalogue was published.

“It’s not what [Barnes] wanted,” says a former student of the art education programme in Merion, who bought some objects at the sale. However, a spokeswoman for the foundation says: “These items were not part of the Barnes collection; they were personal items which Albert Barnes specified should be sold after his death and that of his wife. It is unclear why this did not happen 50 years ago.” She adds that other minor objects, such as doilies, were sold through an affiliate auction company.

The Pook & Pook sale took place almost a year to the day after the Philadelphia Inquirer revealed that the foundation had leased the galleries and administrative building inside its 12-acre arboretum in Merion to Saint Joseph’s University, which adjoins the site.

The Inquirer’s article—headlined “Barnes Foundation says St Joe’s lease deal does not mean sales are in the works”—also reported that a collections assessor had been hired to decide which objects to keep and which to sell. “We hired a collections assessment project manager with museum expertise in American decorative arts to work with our curatorial and collections team in reviewing these household items and our other non-collection holdings,” the foundation’s spokeswoman explains. The temporary position has since been eliminated. “There are no plans to sell other objects, and there is no plan to tour the objects in the collection,” she says.

. . . .

Land in Lower Merion is some of the most valuable property in the Philadelphia area. Saint Joseph’s is paying just $100 for the entire 30-year lease of the Barnes land and buildings, with options to extend. “In addition to the nominal annual payment, Saint Joseph’s has taken on the financial responsibility for the management of the property and the horti-culture programme,” Collins says. “The Barnes retains oversight of the arboretum and the historic buildings.” The arrangement “advances our educational mission and commitment to our horticultural programme” and was approved by the Orphans’ Court, he says. A foundation press release in September 2018 celebrated the “long-term educational affiliation” but made no reference to the $100 lease agreement.

. . . .

The recent auction exhumes a bitter dispute dating back to 1990 between the foundation’s management and students in its art education programme, which was developed by Albert Barnes and taught in the Merion galleries.

The foundation argued then that its financial woes made a relocation to downtown Philadelphia necessary. The students countered that Barnes himself had said objects in his living quarters in Merion and his rural Pennsylvania farm Ker-Feal (which is rarely open, and by appointment only) could be sold to keep the educational programme going or to avoid moving the collection.

At the time, management said that objects in Ker-Feal, which is filled with furniture and ironwork, were crucial to the foundation’s three-campus conception, with the contents reflecting the collector’s taste. The judge in the case was sceptical about the feasibility of running the Merion and Ker-Feal properties as well as the new museum in Philadelphia, but permitted the foundation to move. Now, the former students say, the foundation has sold what it once claimed were essential objects.

Link to the rest at The Art Newspaper

PG says that, as a general practice, in former days, he always advised estate planning clients against putting provisions in their will or trust to the effect of, “No matter what happens, don’t sell the old home place.” His reasons were that in the future, it might make perfect sense to sell the home place for reasons the testator could not visualize at the present time.

However, PG also suggests that if someone wants to manage the Barnes Foundation, that person will certainly be apprised of the no-sale provisions that limit what management can do. Accepting the job/board position, then making management decisions that directly violate those provisions seems unseemly and dishonest to PG.

This relates to serious authors because of the long time during which copyrights to their books will remain in force. The term of copyright for works created by individuals in the United States is the life of the creator plus 70 years, so the copyrights will most definitely outlast the author.

From ArtNews:

In New York’s Southern District Court on Monday, lawyers for the Andy Warhol Foundation for the Visual Arts and photographer Lynn Goldsmith stood before Judge John G. Koeltl in service of their clients in a case taking up a 1984 series of Warhol screenprints of the storied musician Prince.

. . . .

Goldsmith has alleged that Warhol copied an image she took of Prince in 1981 and, in doing so, violated her copyright. She shot her image of Prince while on assignment for Newsweek, and Warhol used her image for “Prince,” a series of 16 screenprints he made in 1984.

The Warhol Foundation first filed a preemptive motion against Goldsmith’s claim in 2017, alleging then that she was attempting a “shake down.” As the case has continued, the foundation is now demanding a “declaratory judgment” to the effect that Warhol did not infringe upon the photographer’s copyright.

The case takes up complicated issues surrounding art and appropriation. Did Warhol artfully reconstitute Goldsmith’s image, or did he merely copy it? How could one side prove its position either way?

. . . .

Luke Nikas . . . attempted to address such questions. He said that, however similar they might appear, Warhol and Goldsmith’s representations of Prince serve different purposes. “Andy Warhol took images of people, goods, and companies to force us to confront how we consume them,” Nikas said—adding that, as viewers, “we’re not consuming Prince the person or the icon—we’re consuming the image.”

. . . .

Nikas suggested that “Goldsmith conveyed no intent to deal with the same topics as Warhol,” adding that their work was made for “entirely different purposes.” The judge concurred, asserting that if one were to put the two prints next to each other, the “common person would point to one and say, ‘Hey, that’s a Warhol!’ So that is its own work of art.”

Lawyers from both sides debated the “protected elements” of Goldsmith’s photograph—formal aspects of it that involved creative choices, such as lighting, color palette, angle, and cropping. Nikas argued that the Warhol work differed from Goldsmith’s photograph in all these respects. Goldsmith’s lawyer . . . said another protected element ought to be considered—that Warhol’s work did itself appear in Vanity Fair in 1984, meaning that it, too, could have been made for a magazine. Judge Koeltl disagreed with Werbin’s assertion, noting that the Warhol “Prince” works were art objects originally and not intended for editorial use.

Link to the rest at ArtNews

PG will note that he doesn’t think the reporter from ArtNews has spent much time in court prior to this case.

PG interprets the quotes from Judge Koeltl as reflecting that he doesn’t spend much time on cases of interest to anyone beyond police reporters and hopes to become the go-to guy for cases involving famous artists.