Copyright/Intellectual Property

These Trump Socks Went Viral—and a Nightmare on Amazon Began

2 June 2019

From Wired:

When Donald Trump visited Louisiana earlier this month, he was greeted with an unexpected hairy surprise. Billy Nungesser, the state’s lieutenant governor, got dressed with the commander-in-chief in mind that morning. With the president and news cameras as his witness at the airport, Nungesser joyfully lifted the leg of his pants to reveal a goofy pair of socks: Each ankle bore Trump’s face, complete with a signature tuft of fake blond locks waving daintily in the breeze. The bizarre-looking socks quickly went viral and were covered by a smattering of news outlets. Stephen Colbert even mentioned them on The Late Show.

For Erica Easley, all the attention was great, at least at first. Easley is the founder of Gumball Poodle, a small Los Angeles–based sock company that originally came up with the hirsute design during the last presidential election. “They went really viral, beyond anything we’d ever experienced before,” she says about the aftermath of Nungesser’s photo-op. “And these socks have been on Rachel Maddow, The View, a bunch of things in 2016.” Wholesale orders started ticking up. Several media outlets linked to Gumball Poodle’s Amazon listing, and soon the Trump socks reached Amazon’s best-seller list for men’s novelty socks.

About a week passed before Easley noticed that something had gone horribly wrong. Dozens of third-party merchants, most of whom looked to be from China, had jammed her Amazon listing with what Easley believed to be knockoffs, selling for a fraction of the original $30 price tag. (Included in that price, for the record, is a tiny comb, to style your socks’ hair. Everything is made in the USA.) To make matters worse, Amazon had chosen one of the frauds as the default seller, shutting Gumball Poodle out. Meanwhile, other third-party sellers appeared to have taken Easley’s photos and set up their own, much cheaper listings.

Easley had done everything to protect her business from exactly this kind of attack. Her hairy sock design is patented in the US, and her logo, which is stamped on the bottom of the socks, is trademarked. What’s more, Gumball Poodle is enrolled in the Amazon Brand Registry, an enhanced suite of tools the company provides eligible brands to protect their intellectual property. But Easley found Amazon’s protections weren’t enough, and she says the company largely ignored her pleas for help. Only after WIRED reached out to Amazon for this story were the counterfeits removed.

. . . .

Gumball Poodle isn’t alone. “There are thousands of other trademark owners who face the same kind of nonsense every single day,” says James Thomson, a former Amazon employee and a partner at Buy Box Experts, a firm that consults with Amazon sellers. “Amazon does have a problem with counterfeits.”

Counterfeiting is a booming, trillion-dollar industry that costs businesses around the world billions of dollars a year. Its growth has been fueled by the rise of ecommerce, which a government report says has led to “a fundamental change in the market for counterfeit goods.” That report, published last year by the Government Accountability Office, found that the volume and variety of counterfeit goods seized by officials has grown year after year, and it’s increasingly difficult to distinguish knockoffs from the real thing. It also notes that fraudulent goods are sold on a number of different ecommerce platforms.

. . . .

But on Amazon, counterfeits can be uniquely devastating, in part because of the site’s sheer scale. Half of all US ecommerce sales go to Amazon, and the site is also where about half of all product searches on the web begin. Not many companies can afford to avoid it. If they do stay away, they risk letting other sellers determine how their brand is marketed on one of the biggest online retailers in the world.

Another problem is the way Amazon is designed. Unlike on eBay, Etsy, or other online marketplaces, a single Amazon product listing can feature offers from dozens of independent sellers. The company uses an algorithm to decide which merchant’s goods should be the default, based on factors like price and shipping speed. Winning the default slot, referred to as the “Buy Box,” gives sellers an enormous advantage. Customers can “Add to Cart” or “Buy Now” their products with a single click, while the losers are hidden behind a dropdown menu. The idea is to allow consumers to quickly make a purchase, without needing to sift through every similar option. But the system, experts say, also makes sneaking counterfeits into the hands of consumers easy.

Link to the rest at Wired

Artist Agrees to Modify Controversial Mural

31 May 2019

From ArtForum:

Following backlash from community groups, Brooklyn artist Beau Stanton has offered to make changes to the mural of American actress Ava Gardner he painted on the Robert F. Kennedy Community Schools complex two years ago. The work, which features a profile of Gardner’s bust overlaid with palm trees and set against a blue-and-orange backdrop that evokes the rays of the sun, drew criticism from Korean Americans and the Wilshire Community Coalition, who claim that the rays are too similar to Japan’s Rising Sun flag, which is viewed as a symbol of the war crimes the Japanese military committed during World War II.

After numerous arts professionals of the Korea diaspora called for the work to be removed or altered . . . the Los Angeles Unified School District . . . announced it would paint over the mural in December 2018. The move sparked an outcry from artists and Los Angeles residents who don’t have objections to the piece and led to a debate about censorship. Those who came to the mural’s defense include Shepard Fairey, who claimed he would remove his own mural from the campus if the school destroyed Stanton’s.

On Wednesday, Stanton revealed that he agreed to modify the piece. “These interactions have allowed me to synthesize a solution that aims to rise above the original binary conversation of ‘keep or remove the mural’ in order to build upon the original work and create something that speaks to the past, present, and future of the RFK campus,” he told the Los Angeles Times. The compromise allows the artist to revisit his vision for the work while he makes changes in order to be sensitive to the activists who find it offensive.

The district has allotted around $20,000 to fund the additional work on the piece.

Link to the rest at ArtForum

Here’s a photo of the mural in question that also shows parts of the school that are not included in the mural:


As mentioned in the OP, the school where the mural was painted is named after Robert F. Kennedy, who was assassinated at this location, formerly the site of The Ambassador Hotel. Kennedy was shot and killed in the kitchen of the hotel in 1968. The hotel was closed in 1989 and demolished in 2005-2006 after its purchase by the School District.

Here’s more from the Los Angeles Times:

Earlier this month, L.A. Unified announced its decision to paint over the mural after the Korean group pronounced the background as offensive as a swastika and threatened legal action.

The mural’s artist, Beau Stanton, has denied any connection between his artwork and the battle flag. The rays on the flag differ in number, thickness and color.

The leader of the Korean group, Chan Yong “Jake” Jeong, said he does not challenge Stanton’s good intentions, but his group still wants the mural gone.

. . . .

“As a result of the extensive input, there is a need to have additional conversation,” Eugene Hernandez, administrator of operations for that part of the school system, said Monday. “Therefore, we will not be taking immediate action on the mural at this time.”

Last week, Hernandez defended painting over the mural, saying that schools belong to the community, which should be able to determine whether such works are appropriate.

But since then district officials have heard from a wider swath of community. Some teachers at RFK have stepped forward to say that the views of faculty and students were never considered.

. . . .

“My father was sympathetic to cultural sensitivities,” [Robert F.] Kennedy said. “But he understood that the central bedrock tenets of American democracy are freedom of speech and expression. As fiercely as they supported tolerance, and diversity, my father and my uncle loathed censorship. . . .

“My father and uncles considered people who destroyed art in the service of political agendas as the worst sort of scoundrels,” he wrote. “There is so much reprehensible and irrational about this scheme that one could write a thesis enumerating the idiotic flaws that catacomb the shallow arguments in its favor.”

. . . .

The district possibly has another problem related to the mural. As of midday, officials had been unable to locate releases from the artists.

It is district policy to obtain such releases, which give L.A. Unified full control over the artwork, General Counsel David Holmquist said. If the district cannot find such paperwork, its options may be more limited.

Even if releases are located, he said, the district will want to give serious consideration to the wishes of the artists.

Stanton said Monday that his attorney has contacted the district, threatening legal action if it proceeded with the plan to paint over the mural.

“We wanted to stay the decision until the other stakeholders had a chance to speak their minds,” he said.

Link to the rest at the Los Angeles Times

PG has written previously about Moral Rights of artists and authors.

The mural described in the OP would seem to be a candidate for protection under The Visual Artists Rights Act of 1990 (VARA), a narrow protection of moral rights for visual artists only.

Prior artists’ victories under VARA have included several suits for damaging graffiti placed on urban buildings in the US.

However, one of the earlier higher profile moral rights lawsuits was over a six-story Los Angeles mural painted on the side of a building owned by the US government. That case resulted in a $1.1 million judgment in favor of the artist.

Under VARA, an artist may waive moral rights, but, according to the OP, apparently there was no waiver with respect to the mural that was almost painted over by the school district.

PG will also note that World War II ended with the defeat of Japan 74 years ago.

The International Military Tribunal for the Far East was convened from 1946-48 to try Japanese war crimes committed during World War II.

Twenty-nine Japanese military and political leaders were charged with 55 separate counts encompassing the waging of aggressive war, murder and conventional war crimes committed against prisoners-of-war, civilian internees and the inhabitants of occupied territories. The defendants included former prime ministers, former foreign ministers and former military commanders.

The indictment accused the defendants of promoting a scheme of conquest that “contemplated and carried out … murdering, maiming and ill-treating prisoners of war (and) civilian internees … forcing them to labor under inhumane conditions … plundering public and private property, wantonly destroying cities, towns and villages beyond any justification of military necessity; (perpetrating) mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population of the over-run countries.”

All defendants who were tried were convicted of war crimes and received sentences ranging from seven years’ imprisonment to execution. Two defendants died prior to the end of their trials and one was found unfit to stand trial.

See Wikipedia for more information on Japanese war crimes trials.


Google and Oracle’s $9 Billion ‘Copyright Case of the Decade’ Could Be Headed for the Supreme Court

31 May 2019

From Newsweek:

Google calls it the “copyright case of the decade.”

“It” is the $9 billion copyright infringement suit Oracle filed against the search giant nearly 10 years ago. Oracle brought the case in 2010 after Google incorporated 11,500 lines of Oracle’s Java code into Google’s Android platform for smartphones and tablets. Android has since become the world’s most popular operating system, running on more than 2.5 billion devices.

Google won twice at the U.S. District Court level. But each time, a federal appeals court overturned the verdict, ruling for Oracle. Now, Google is begging the Supreme Court to hear the case, and so are the 175 companies, nonprofits and individuals who have signed 15 friend-of-the-court briefs supporting Google’s plea.

. . . .

Here’s the pressing issue: How much protection do copyright laws give to application program interfaces, or APIs? That might sound arcane, but these interfaces are omnipresent in software today. They form the junctions between all the different software applications developed by various companies and independent developers that must seamlessly interact to work right.

All the apps that sit on our smartphones—like Pandora or Uber—use interfaces to communicate with our phones’ operating systems (Apple iOS for iPhones, for example). If the owner of a platform can claim, through copyright, to own those interfaces, it can limit innovation and competition, Google contends. Not only can it determine who gets to write software on its own platform, but, as we’ll see, it may even be able to prevent rival platforms from ever being written. The Harvard Journal of Law and Technology considers the case so consequential that it devoted an entire 360-page “special issue” to it last year.

“If the appeals court’s rulings stand, it’s likely to lead to entrenching dominant firms in software industries,” says Randy Stutz, an attorney with the American Antitrust Institute, which supports Google in the dispute.

Oracle, on the other hand, says the case is cut-and-dried. Its basic argument: Google negotiated to take a license for the Java code, it wasn’t able to reach terms, and then it used portions of the code anyway. (And that’s all true.) Now, it’s time to pay the piper.

. . . .

“Before Android,” Oracle’s lawyers write in their brief to the Supreme Court, “every company that wanted to use the Java platform took a commercial license…including smartphone manufacturers BlackBerry, Nokia and Danger.”

Oracle claims that, if not for Android, Oracle’s own Java software could have become a major smartphone platform. (Although Java was written by Sun Microsystems, Oracle acquired Sun in 2010, shortly before bringing this suit.) Oracle’s lawyers mock the notion that the rulings in its favor will spawn any dire consequences. Despite Google’s “sky-is-falling” arguments, they write, the software industry did not crash in the wake of May 2014 or March 2018, when the U.S. Court of Appeals for the Federal Circuit issued the two key rulings that Google seeks to reverse.

In fact, Oracle has enjoyed fervent support from its own friend-of-the-court briefs, including one from BSA, the Software Alliance, which counts companies like Adobe, Apple and IBM among its members.

Remarkably, for a case about software interfaces, the key Supreme Court precedent was decided in 1879. Obviously, that suit didn’t involve a smartphone platform, but it did define the limits of copyright and explain how a copyright differs from a patent. In that dispute, Charles Selden had authored and copyrighted a book laying out a method of bookkeeping. The book included some blank forms that could be used to implement the system. Later, W.C.M. Baker began marketing his own set of forms to implement Selden’s method that were very similar to those in Selden’s book.

Selden’s widow sued Baker for copyright infringement—and lost. Basically, Justice Joseph Bradley explained in the opinion, she was trying to use copyright to protect the ideas contained in Selden’s book. He explained that, while a patent can protect an idea, a copyright protects only expression—in this case, the particular words Selden used to describe his bookkeeping method. “The copyright…cannot give to the author an exclusive right to the methods of operation which he propounds,” the Supreme Court’s decision said. (Selden had not patented his bookkeeping method.) Since Selden had no monopoly on his method, he had no monopoly on the forms needed to carry out that method.

Congress later wrote the Court’s Baker v. Selden ruling into the federal copyright statute, specifying that a copyright cannot “extend to any idea, procedure, process, system, [or] method of operation,” even if that idea is “described” in copyrighted work.

Link to the rest at Newsweek

Moral Rights

25 May 2019

In PG’s experience, most authors in the U.S. aren’t familiar with moral rights. In part, this is because the federal government did not do much about moral rights until 1989.

When the country joined the Berne Convention in 1989, it amended its Copyright Act to include moral rights. However, while the moral rights set out in Berne are intended to apply to all types of copyright-protected works, the U.S. took a narrower interpretation of the moral rights requirements, stipulating that the Convention’s “moral rights” provisions were addressed sufficiently by other statutes, such as laws covering slander and libel. Some international copyright experts contend that the U.S. is not, in fact, complying with its Berne obligations.

Some state legislatures have enacted state moral rights laws, but there is more than a little doubt about whether such laws can be enforced because federal IP laws preempt state IP legislation.

However, in the ever-so-slow manner in which intellectual property laws are changed in the United States, moral rights may be on the path to more structured protection.

From a recently-released study of moral rights by the U.S. Register of Copyrights (footnotes omitted):

Taken from the French phrase droit moral, the term “moral rights” generally refers to
certain non-economic rights that are considered personal to an author. Central to the idea of
moral rights is the idea that a creative work, such as a song or book, actually expresses the
personality of the author.

Society has long recognized the importance of such a bond between a creative work and its author: as far back as the early 1500s, courts in France recognized that only the author has a right to publish their work. Over the course of the last two centuries, countries have increasingly codified this close connection between the author and their work, first through judicial doctrines and limited statutory protections for certain aspects of moral rights, such as a right of first publication, and later through formalized statutory moral rights schemes. While countries have come to recognize a variety of different moral rights, the two most commonly recognized moral rights are the right of an author to be credited as the author of their work (the right of attribution), and the right of an author to prevent prejudicial distortions of their work (the right of integrity), both of which were codified at the international level in the 1928 Rome revision of the Berne Convention.It was not until 1989, however, that the United States became subject to an obligation to provide moral rights protections for authors by joining the Berne Convention.

. . . .

[T]he growth of the internet as the primary locus for buying, selling, and licensing works of authorship has meant that original works in digital form have become more accessible to more people. On the one hand, this has meant that the attribution and integrity of works have been more susceptible to mishandling and manipulation. For example, the metadata containing attribution and other information for creative works is very simple to remove (or “strip”) or replace with erroneous information. A work stripped of proper identifying information then can be disseminated widely to the detriment of both the author’s reputation and ability to profit from the work. Similarly, the increasingly accessible video editing technology behind “deepfake” software can not only fundamentally alter the content of an author’s work, but can also lead to social and moral harm for the artists and the subject of the video through malicious use. On the other hand, digital technologies such as fingerprinting and visual recognition software that allow photographers to identify and track metadata related to their works on the internet have enabled authors to combat some of these threats to their attribution and integrity interests. Whether considered as a useful tool or a threat to protection of integrity and attribution interests, there is no question that technology has transformed the moral rights landscape in the United States.

As the foregoing indicates, there is a significant amount of variation in how moral rights are recognized around the world, as well as the manner in which they are protected. For example, in addition to the rights of attribution and integrity, other countries have recognized a number of additional moral rights, some of which are counterparts to economic rights, including:

  • the right of withdrawal, or droit de repentir, which allows authors to retract works from public circulation that they feel no longer represent them or their views;
  • the right of divulgation, through which an author can control the public disclosure of their work, and which supports the economic right of first publication;
  • the right of the author to have access to the original copy of a work in order to “exercise his author’s rights”;
  • the right to prevent others from associating one’s work with an undesirable “product, service, cause or institution”;
  • the right to pseudonymity; and
  • the right of an author to compel the completion of a commissioned work of art.

Additionally, not all countries protect the rights of attribution and integrity in the same manner, and many countries have laws protecting discrete aspects of those rights using different terminology. As many scholars have noted, civil law and common law countries historically took different approaches to the protection of authors’ moral rights: while many civil law countries conceived of moral rights as separate and distinct from an author’s economic rights, common law countries tended to conceive of moral rights as part and parcel of the general copyright protections afforded to an author. Although the Berne Convention largely adopted the civil law approach, conceptualizing moral rights as separate from economic rights, member states have wide discretion in how they chose to implement the moral rights protections of Article 6. For this reason, the contours of the rights of attribution and integrity look quite different, depending upon the country.

One area in which there is significant variance among countries is in how they approach the concepts of waivability and alienability of moral rights. While moral rights are often described as “inalienable,” “nonwaivable,” or in other terms that express the inherent relationship between author and work, moral rights are in fact often waivable and sometimes also alienable under many countries’ moral rights schemes. In some countries like Canada, waivability is explicitly spelled out in the statute. Elsewhere, it is inferred by the ability of authors to authorize certain uses of their works, such as in Nigeria, Germany, France, China, and Switzerland. This ability to waive moral rights is generally tempered by limits designed to protect authors from unwittingly or unwillingly waiving their rights.

Another area of variation in international approaches to moral rights has to do with how the country’s laws treat situations where a work is “authored” by a corporation or has many “authors” that all contribute a small piece to a larger whole  In some countries that have adopted copyright ownership rules similar to the work-for-hire doctrine in the United States, corporations are allowed to hold and assert moral rights in such works. For example, South Korea, Japan, and China all designate employers as the default legal author of works created by employees, including for some moral rights purposes, although they allow the parties to contract around this default.  Indian courts have also recognized moral rights for corporations. In contrast, under both Swiss and French law, moral rights can attach only to natural authors and not corporate entities; employees may maintain or waive their rights, but employing companies cannot hold them. Several countries, including France and Israel, require that moral rights remain with the natural author even when the law or a contract transfers economic rights away. Countries have also adopted different approaches regarding how to address potential conflicts that may arise resulting from the grant of moral rights to different contributors. For example, Guatemalan authors contributing to newspapers do not have control of their contributions when combined in a newspaper, but they do have rights in their works when those works stand alone.

The question of moral rights protection for multi-author works has been particularly acute in the area of audiovisual works. Some countries have adopted special rules for moral rights in these works, attempting to balance the interests of the producer, the director, individual performers, and the authors of incorporated works such as musical scores. For example, while China recognizes motion pictures as collaborative works with several individual authors, the various authors are only granted the right of authorship while all other copyrights belong to the producer.  While Guatemala grants moral rights to the producer (who is also holder of the economic rights), this right includes mandatory attribution for the director, the script author, the author of any underlying work, and the authors of the musical compositions in the audiovisual work. In Nigeria, which also grants moral rights to the producer, the law is designed to encourage performers and others involved in films to execute contracts with the producer in order to preserve any of their rights. Performers in audiovisual works in France are considered employees, and thus their rights of attribution and integrity are governed not only by the moral rights regime, but also by employment law regulations and collective bargaining agreements. In Germany, although moral rights attach to both filmmakers and performers, a rightsholder may only prohibit gross distortions of their work and their interests must be balanced with the legitimate interests of the other film creators and the producer.

Link to the rest at

PG says if you have gotten this far, you know more about moral rights than 99.99% of the authors in the United States. He cannot confidently provide any sort of estimate for authors outside of the United States.

U. S. Copyright Office Considers a Federal Right of Publicity

24 May 2019

From Rothman’s Roadmap to The Right of Publicity:

In a report issued on April 23rd by the Register of Copyrights, the U.S. Copyright Office suggests that the lack of uniformity in state right of publicity laws may require Congressional intervention.

The call for Congress to consider such a right arose in the course of a 107-page report issued by the office on the status of moral rights in the United States. The focus of the report is on moral rights for authors, rather than on personality rights more generally. The report, titled Authors, Attribution, and Integrity: Examining Moral Rights in the United States, primarily focuses on the international treatment of moral rights, and the federal regime in the United States, particularly under the Copyright Act (including the Visual Artists Rights Act (VARA)) and the Lanham Act.

The report focuses on “the rights of attribution (the right to be credited as the author of one’s work) and of integrity (the right to prevent prejudicial distortions of one’s work).” As part of this inquiry, the report identifies various state laws that potentially serve to protect the moral rights of authors and performers.

. . . .

The inclusion of state privacy and publicity laws in the report is solely focused on how these laws can help authors (and performers) protect their moral rights. In particular, the report notes that these laws can provide claims against misattribution, and when a performance is usurped without permission.

. . . .

The report importantly highlights the current chaos in right of publicity laws. The report notes that the “appearance of near-uniformity in adoption of some version of the right of publicity belies the degree to which the exact contours of the right differ significantly from jurisdiction to jurisdiction.” Because of this lack of uniformity, the report suggests that federal intervention may be advisable, albeit with some ambivalence: “If Congress wished to address some of the uncertainty and ambiguity created by the lack of harmonization among state right of publicity laws, Congress might consider adopting a federal right of publicity law.”

. . . .

The report also wisely highlights potential pitfalls of any federal right of publicity law. The report points to the need to determine whether the right should be transferable and under what conditions. I have strongly advocated against making the right transferable, at least when such alienability is unfettered. Allowing the right of publicity to be owned by anyone other than the underlying person jeopardizes our ability to maintain ownership of our own names, likenesses, and voices.

. . . .

Further on in the report, the Copyright Office notes the substantial debate on whether moral rights should be waivable or alienable, observing that when such waivers and transfers are allowed they often become standard. Such a result undercuts the provision of moral rights protections in the first place. This concern is true in the extreme when it comes to allowing transfers of rights of publicity, because what is being transferred are not rights over an external work, but rights to one’s own personal identity.

Another concern with regard to drafting a federal version of the right of publicity is also one that I have raised: quoting from my book, the report notes that providing a postmortem right of publicity raises taxation issues, and could “force heirs to commercialize the deceased person’s identity to pay off [estate tax] debt.”

Link to the rest at Rothman’s Roadmap to The Right of Publicity

The first section of the Copyright Office Report (after the Executive Summary) is a quick overview of the Right of Publicity, however, if you want more of an introduction, the Rothman’s Roadmap site is a good place to start.

“Over the Rainbow” Composer Seeks Pot of Gold from Apple

20 May 2019

From Forbes:

[T]he son and estate of Broadway composer Harold Arlen [have] filed a lawsuit against Apple and other businesses for selling over 6,000 unauthorized recordings of his music. Described as a “massive music piracy operation,” the lawyers claim that “Apple, Amazon, Google, Microsoft and Pandora and their distributors have joined with notorious music pirates to sell and stream thousands of pirated recordings.”

According to the lawsuit, the largest digital music stores and streaming services are now flooded with unauthorized copies of Arlen’s songs that are being sold under different record labels for less than the price of the authorized copies of Arlen’s songs. For example, one online retailer is selling a song from the Jamaica cast album under the record label Soundtrack Classics for $0.99 alongside an authorized copy of the song from the RCA Victor record label for $1.29. The cover art of the Soundtracks Classics version has been doctored to remove RCA Victor’s logo.

“It is hard to imagine that a person walking into Tower Records, off the street, with arms full of CD’s and vinyl records and claiming to be the record label for Frank Sinatra, Louis Armstrong, and Ella Fitzgerald, could succeed in having that store sell their copies directly next to the same albums released by legendary record labels, Capitol, RCA, and Columbia, and at a lower price,” stated Arlen’s attorneys. “Yet, this exact practice occurs every day in the digital music business where there is unlimited digital shelf space … and a complete willingness by the digital music stores and services to seek popular and iconic recordings from any source, legitimate or not, provided they participate in sharing the proceeds,” they argued.

. . . .

Arlen composed [music for] The Wizard of Oz. Its iconic tune “Over the Rainbow” won the Academy Award for Best Original Song in 1939, and was later named the “Song of the Century.”

Link to the rest at Forbes

Actor and Artist Val Kilmer Says He Definitely Did Not Steal an Artist’s Idea for a Sculpture

18 May 2019

From ArtNet News:

Val Kilmer, the “Top Gun” and “Batman Forever” actor who turned to art, has been accused of ripping off an artist and is being taken to court. But Kilmer is demanding the lawsuit be thrown out—and even says the man is harassing him.

According to a report in The Blast, Texas-based sculptor Bale Creek Allen filed a lawsuit last fall claiming that Kilmer stole his idea for a golden tumbleweed sculpture. Allen, who has been selling his own tumbleweed sculptures for several years through galleries in Texas and New Mexico—including one he runs himself—asserts that that actor knowingly took his concept and copyrighted means of production.

Allen claims that Kilmer contacted him about buying one of his sculptures before the actor decided they were out of his price range. Then, in 2016, Allen says he discovered a similar work by Kilmer, cast in 22 karat gold, which was allegedly sold for $150,000.

. . . .

In court documents obtained by The Blast, Kilmer’s lawyers say the actor “specifically denies that he has infringed or is liable for infringement of any purported copyright held by Mr. Allen.” They also accuse Allen of “misuse of copyright by filing unmeritorious and sham claims” and say his lawsuit is being pursued “with the intent and effect of harassing Mr. Kilmer.”

Link to the rest at ArtNet News

The Blast has more:

Kilmer says he “specifically denies that he has infringed or is liable for infringement of any purported copyright held by Mr. Allen.”

He argues the artist’s work lacks the “requisite originality for copyright protection” and says if Kilner’s artwork looked similar, it’s not something that can be copyrighted.

Kilmer continues, “Mr. Allen’s claims are barred because of his misuse of copyright by filing unmeritorious and sham claims in the Complaint to use his purported copyright to secure an exclusive right or monopoly not granted by the copyright office, contrary to public policy, doing so with anticompetitive intent and effect and with the intent and effect of harassing Mr. Kilmer.”

. . . .

Bale Creek Allen claims to have been selling gold colored tumbleweed sculptures for years in art galleries around Texas and New Mexico.

Link to the rest at The Blast

There are photos of the artwork at the OP.

PG says in his experience most tumbleweeds look pretty much alike with a few outliers. However, he also expects a close examination of tumbleweeds would reveal that each one has its own unique stem patterns.

PG is skeptical of any sort of claim that the Texas artist owns a copyright on gold-colored tumbleweeds of any size or shape. If the artist has been selling his tumbleweed sculptures for years, are they all the same or has he sold sculptures based upon different original tumbleweeds?

If they are different, has the artist registered copyrights on each different tumbleweed sculpture?

From the photo in the OP, Mr. Kilmer’s sculpture has a different appearance than the Texas artist’s sculpture.

Here’s what the US Copyright Office says about copyrights of sculpture.


Public Rights – Copyright’s Public Domains

16 May 2019
Comments Off on Public Rights – Copyright’s Public Domains

From IPKat:

What is the public domain? We know “of” it, but do we know exactly what it is made of or where to find it in the law? We certainly could not define it as simply (if at all) as we could list, off the top of our heads, the main exclusive rights of copyright. Yet we tend to agree that a healthy public domain is necessary. We also tend to agree that the public domain is the ‘other side of the coin’ that holds the copyright framework together. So why is the public domain underrepresented in statutes or in textbooks?

. . . .

Instead of describing where copyright ends, Greenleaf and Lindsay describe where public domains begin. They do so by referring to what they call “public rights”, i.e. all the rights according to which users can use and enjoy copyright content freely, which they argue form the substance of public domains in law. This approach goes against traditional accounts of copyright law, which let the readers work out for themselves what rights users enjoy on the basis of what protected authors can and cannot enforce by law.

. . . .

All we need to do, they argue, is to think about public domains as a set of positive “rights” in their own name instead of defining them in negative terms. In doing, perhaps we will see more policies at the national level which are as conscious of the public domains as the law has been of owners’ exclusive rights.

. . . .

First, the public domain under copyright law is protean, existing through a complex web of authorized uses (which Greenleaf and Lindsay call “public rights”). The authors define the public domain as the collection of public rights which allow the public to “use works on equal terms without seeking permission”

. . . .

Second, the book addresses public domains from a comparative perspective. As such, the book covers “public rights” as prescribed by international copyright and neighbouring treaties as well as various domestic laws. Australia, the United Kingdom, the United States, France, Germany, and China, are the countries more often cited.

. . . .
The authors have structured the book around the “public rights” that they identify as allowing the public to use a work without permission. With this “definition” in mind, the authors chart a list of 15 public rights (which we have compressed into 13 categories of rights below), defined as per their legal basis:

1.     Works failing minimum requirements [This category includes uses of works that may not be fixed, where fixation is required by law]

2.     Works impliedly excluded [This category includes uses of works that do not fit in the pre-established list of protectable copyright works]

3.     Works expressly excluded [This category includes works that have been expressly excluded by law. They are rare within national laws, but the Berne Convention’s exclusion of ‘news of the day’ is one example]

4.     Constitutional and related exclusions and exceptions [This category refers to uses of works that are allowed on the basis of constitutional rights or limitations, such as the freedom of expression or other human rights. It is particularly relevant in the US, where the Copyright Clause enjoys a constitutional basis, but the EU and the European Court of Human Rights have developed a similar jurisprudence with reference to international texts on human rights]

5.     Works in which copyright has expired [Self-explanatory]

6.     Public domain dedications [Ever heard of these? They are rare but they do exist, the authors explain. Some countries make provision for the relinquishment of copyright, such as in Chile, Kenya or India.]

7.     Public policy refusal against enforcement [This category covers uses of works allowed on the basis that copyright protection in the work may not be enforced due to its content. Once used to deny protection to immoral, obscene or blasphemous works, enforcement has been refused on the basis of ‘public policy’ in more recent jurisprudence. Think of the Glyn and Spycatcher cases in the UK. In China, works which contravene legislation will be denied protection]

8.     Public interest defence to enforcement [This category includes uses that would be allowed in court because it would be against the public interest. E.g., denying the use of a work that would be contrary to a protected human right or a state policy]

9.     Insubstantial parts [Again, self-explanatory; users have a right to use small parts of protected works]

10.  Ideas or facts [Users may freely use and reproduce any content that amounts to mere facts or ideas]

11.  Uses outside exclusive rights [Self-explanatory]

12.  Use granted by the rightsholders via statutory or voluntary [i.e. dedication of the work to the public domain by the author him/herself] licencing

13.  De facto public domain of benign use [This refers to uses of protected content going unchallenged by rights owners either because they do not mind, or because the use is done according to other conventions, alternative to copyright. The authors describe how uses of works in the de facto public domains have significantly increased with the internet and digital technologies that have changed the culture around use and re-use by making tracking and suing virtually impossible in most cases

Link to the rest at IPKat

Here’s a link to the book described in the review: Public Rights: Copyright’s Public Domains (Cambridge Intellectual Property and Information Law)

Here’s a bit more on the topic from Wikipedia (numerous links omitted, except for ImageJ, which PG had never heard of and which sounded interesting):

The public domain consists of all the creative works to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited,expressly waived, or may be inapplicable.The works of William Shakespeare and Beethoven, and most early silent films, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired. Some works are not covered by copyright, and are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes,and all computer software created prior to 1974. Other works are actively dedicated by their authors to the public domain; some examples include reference implementations of cryptographic algorithms, the image-processing software ImageJ (created by the National Institutes of Health), and the CIA’s World Factbook. The term public domain is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as “under license” or “with permission”.

As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country.

. . . .

Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law.

According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property.

However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership.

. . . .

Patterson and Lindberg described the public domain not as a “territory”, but rather as a concept: “[T]here are certain materials – the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers – not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.”

Link to the rest at Wikipedia

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