Legal Stuff

From Above the Law:

There’s been a lot of debate about the First Amendment recently. For example, should there be an exception to the First Amendment for hate speech? Some discussions have revolved around potential conflicts between various amendments. What is the relationship between the First Amendment and the Equal Protection Clause of the Fourteenth? What is the relationship between the First and Second Amendments? These are all issues that have been discussed and debated recently, but what about the First Amendment and copyright law?

The First Amendment, of course, protects our right to freedom of speech and expression. The First Amendment clearly states that “Congress shall make no law… abridging the freedom of speech, or of the press.”

Copyright, which is also grounded in the Constitution, gives the rightholder an exclusive legal right over his work, allowing him to restrict access to it, prevent others from using or reproducing it. If this were all there was to copyright law, a rightholder could certainly use his exclusive rights to block criticism and discussion, stifling free speech. Without proper safeguards, copyright law could conflict with the right to freedom of speech by giving the rightholder censorship rights.

For example, a blogger on gender equity might try to make a point about the portrayal of women in audiovisual media. Without the ability to use a clip from a film or music video, the writer would be less effective in illustrating her point. Without quoting dialogue or lyrics, we would just have to take the blogger’s word for it that a particular genre, movie or song is misogynistic.

Imagine what would happen if exclusive rights to copyright protection actually did conflict with, and trumped, the right to freedom of speech? Would journalists effectively be able to report on political speeches without fear of an infringement lawsuit? As my criminal law professor said on a daily basis, words have meaning. Paraphrasing and summarizing what someone has said may not adequately get the point across. Exactly what did President Trump say about the violence in Charlottesville? The phrase “on many sides” was plastered across news headlines for days

. . . .

Ultimately, there are fewer tensions between the copyright law and the First Amendment than one might think, particularly when we look to the purpose of both. While copyright gives the rightholder a “limited time” monopoly, the purpose of the intellectual property system, grounded in the Constitution, is “to promote the progress of science and useful arts.” Thus, its purpose — even as it grants monopoly rights — is to benefit the public.

The goals of the First Amendment are not as clearly laid out within the text itself, but have been the subject of extensive discussion. Of course, one goal is to protect our democracy by allowing an exchange of ideas through unconstrained speech. Access to a range of opinions and views helps inform policy positions of government officials and voters deciding for whom they should cast their ballots, as well as ideally enabling the search for truth. Access to information and freedom of expression not only protects democratic ideals, but is also essential to art and culture.

Ultimately, copyright and freedom of speech promote the same goals, seeking to further the public interest through creation and dissemination of speech, expression, and works. Indeed, the Supreme Court confirmed in Twentieth Century Music v. Aiken,

The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

When we see that they serve the same purpose, albeit through different means, we can seek to resolve any potential tensions by looking to see whether that purpose is being served.

While copyright provides an author exclusive rights and could be used as a censorship tool, it also includes a number of limitations and exceptions, the most significant one being fair use. The fair use doctrine has a long common law history, with the first United States case decided in favor of the user in 1841. Eventually, this doctrine was codified in the 1976 Copyright Act and allows a user to use existing works without permission, under certain circumstances and for various purposes including, for example, criticism, comment, new reporting, teaching, research, and scholarship and aids in ensuring that copyright serves the public good.

Justice Ginsburg called the fair use doctrine a “built-in free speech safeguard.” It prevents the right holder from possessing unlimited freedom to control all uses of their works and is indeed a “safety valve” for the First Amendment.

Link to the rest at Above the Law

From Pirated Thoughts:

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

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

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

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

. . . .

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

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

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

. . . .

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

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

Link to the rest at Pirated Thoughts

And from The Future of Music Coalition:

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

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

. . . .

Why do creators have this right?

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

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

. . . .

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

Link to the rest at The Future of Music Coalition

From Rebecca Tushnet’s 43(B)log:

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

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at Wikipedia

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

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

PG has posted items about the proposed CASE legislation. While virtually any law can be abused, he thinks this legislation can help authors who are afflicted by small-time copying of their work.

From the Executive Director of the Authors Guild via Publishers Weekly:

Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.

Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.

With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.

Link to the rest at Publishers Weekly

From The Copyright Alliance:

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act), H.R. 2426 and S. 1273, a bill that would create an optional small claims tribunal within the U.S. Copyright Office, was introduced by Congress in May 2019. Before that, it had been introduced in different forms in prior Congresses as well.

. . . .

Ever since the Digital Millennium Copyright Act (DMCA) was passed, anti-copyright groups have been circulating horror stories about the DMCA notice and takedown process being used to harass users, suppress speech and remove material posted by users who have valid fair use defenses.[1] The DMCA includes provisions to protect against such misuse. One way that the DMCA protects against misuse is that it requires the sender of a DMCA takedown notice to assert under penalty of perjury that the material is infringing. Consequently, sending a takedown notice for the sole purpose of stifling speech opens that person up to a perjury charge. Another way the DMCA protects against misuse is found in Section 512(f) of the DMCA, which makes those who use the DMCA takedown process for the filing of false infringement claims liable for the damages suffered as well as for attorneys’ fees.

Anti-copyright groups like EFF, Public Knowledge and Engine counter that these protections are essentially ineffective because most of the recipients of takedown notices are individuals who do not have the money to sue in federal court [2] and because these recipients are often too afraid to file DMCA counter-notices because of the requirement in the DMCA that the counter-notice include a “statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.…”

. . . .

If only there were a solution for this—perhaps some legislation in Congress that might help address these concerns. In fact, there is and it’s called the CASE Act, a bill that would create an optional small claims tribunal to resolve the following types of claims by both copyright owners and users of copyrighted material:

• claims of infringement brought by copyright owners;
• declarations of non-infringement brought by users;
• claims of misrepresentation of infringement in takedown notices under Section 512(f) of the DMCA brought by users;
• claims of misrepresentation of infringement in counter-notices under Section 512(f) of the DMCA brought by copyright owners; and
• counterclaims and legal and equitable defenses (like fair use) brought by any party.

In the corpus of articles and blogs about the CASE Act, the primary, if not sole, focus has been on claims of infringement that can be brought by copyright owners. Unfortunately, there has been little, if any, discussion about claims that can be brought by usersunder the CASE Act.

Regrettably, anti-copyright vigilantes like EFF, ReCreate and Public Knowledge that purport to represent the interests of users are so laser focused on their disdain for copyright and the CASE Act’s provisions that will help copyright owners that they have FAILED to apprise users about the bill’s provisions that are designed to specifically benefit them.

. . . .

Complaint #1: It is too costly for a user to challenge a cease and desist letter or DMCA takedown notice even when they have a meritorious defense.

These groups say that the high cost of litigation in the federal court system effectively prevents users from bringing declaratory action for noninfringement or DMCA misrepresentation claims against copyright owners. The CASE Act addresses these concerns by creating a low-cost, efficient, and streamlined way to resolve copyright infringement disputes that is accessible and affordable to individuals and small businesses and is a viable alternative to federal court. Here are a few ways that the CASE Act is much more affordable than federal court:

• Attorneys’ Fees: The small claims process created by the CASE Act is simplified so that there is no need to hire an attorney. The largest cost associated with defending a copyright infringement case is the cost of hiring an attorney. In fact, the cost of hiring an attorney often exceeds the damages a user could obtain in a 512(f) misrepresentation case or a declaration of non-infringement action (since there would be no damages in such an action). Providing parties with the practical ability to defend themselves without paying tens of thousands of dollars (or more) to an attorney will enable users to bring claims (and defenses) that they cannot presently bring because of the high cost of doing so. If a party feels the need for legal representation, the CASE Act allows them to use the pro bono assistance of law students (supervised by a licensed attorney). The renowned copyright skeptic Larry Lessig famously argued fair use “is the right to hire a lawyer.” Once the CASE Act passes that statement will no longer be true (if it ever were).

. . . .

• Travel Costs: Unlike federal court, participation in the small claims process takes place remotely. There is no need to travel to the Copyright Office in Washington DC. The CASE Act explicitly states that proceedings “shall be conducted at the offices of the Copyright Claims Board without the requirement of in-person appearances by parties or others”and that each party will make its case “by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities.” The ability to participate remotely in the proceedings without the need to travel to Washington DC is a significant cost savings relative to bringing a case in federal court (where remote participation is generally not permitted), to say nothing of the tremendous convenience of not having to travel away from one’s home or business.

. . . .

Complaint #2: Users are too intimidated to file a DMCA counter-notice because to do so they must agree to be sued in federal court.

If, in fact, users with meritorious defenses or viable misrepresentation claims are not using the counter-notice process because they are intimidated by having to agree to litigate in federal court, the CASE Act provides an ideal alternative by allowing them to assert their claims and defenses without the complexity and trepidation they associate with federal court.

Complaint #3: The DMCA doesn’t give the parties time to explore alternatives to federal court litigation.

In comments filed with the U.S. Copyright Office, Engine, one of the groups that complained about the efficacy of the counter-notice process, said that one of the problems with the counter-notice process was that it “require[s] rights holders to proceed directly from notice to federal suit, with no time or ability to pursue mediation or other alternate dispute resolution.”  . . . .  The CASE Act effectively does what Engine is asking for by establishing a process to resolve copyright infringement claims and defenses in a cost-effective, quick fashion, without proceeding directly to federal court.

Link to the rest at The Copyright Alliance

PG would like to think that a Copyright Small Claims Court would work for individual authors, but has a couple of concerns:

— Small Claims Courts in various states appear to vary in efficacy according to the general attitude and qualifications of the judges in those courts. Typically those courts have jurisdiction over a limited geographic area so litigants can appear in person. The most recent version CASE Act (admirably) does not require the litigants to appear in person and contemplates that hearing officers in Washington DC will be resolving many cases based upon the written submissions of the parties and, in the event a hearing is required, that many such hearings will be conducted online or on the telephone with the litigants providing testimony, etc., from their homes or other nearby location without having to travel to Washington.

The current legislation does permit one or both of the parties to optionally appear in person, however. Based upon a lot of time spent in court during an early stage of his legal career, PG is a bit concerned about the asymmetry of methods of persuasion between an in-person party or advocate and one who is remote. He would prefer that, if one party wants to participate remotely, the entire hearing is handled remotely so the playing field is absolutely equal.

— Under the CASE Act, if a copyright holder/author files what the judge/hearing officer decides is a case without merit, the judge/hearing officer can assess costs and fees against the copyright holder in amounts large enough to heavily burden a great many indie authors.

Many Small Claims Courts in various states have upper limits for damages in the hundreds of dollars. CASE courts can assess damages of up to $30,000 plus attorneys fees if the hearing officer decides the claimant has acted in bad faith. That is enough to seriously harm a great many indie authors. PG understands that the UK has an IP Small Claims court that divides claims by the amount of damages claimed – equivalent to small, medium and large damages range. That type of system might assuage some of PG’s concerns about over-sized penalties imposed on authors who don’t have access to much money.

CASE = Copyright Alternative in Small-Claims Enforcement Act

From Medium:

I got an email from the Electronic Frontier Foundation, whose work I admire and mostly support. In the email the EFF asked its supporters to call their representatives and tell them not to support the CASE act.

Roughly, the CASE act would lay out a new way for copyright holders to seek payment when their work is infringed by establishing a small-claims-court-like board inside the US Copyright office. Damages would be limited to US$15,000 for each infringed work and a total of $30,000 per claim. The law is meant to protect infringers from much larger monetary claims and to give the infringed a way to obtain compensation without having to mount a prohibitively expensive lawsuit.

My work pays for my family’s shelter, food and education and for my ability to keep writing music. The CASE act would give me a simple, inexpensive way forward when someone in the US steals my work and refuses to engage with me to execute a license to use my copyrights.

The EFF says that the CASE act will spawn an industry of copyright trolls who will file frivolous claims in order to make money off innocent people. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen? As I hear it, the argument is that giving corporations the ability to collect damages from individual infringers who aren’t doing harm is so great an evil that we cannot craft legislation that would allow individuals to bring valid claims against corporate infringers who are doing real harm.

Let me tell you some of my experience as an artist who earns a living from their work and whose work is often infringed/appropriated/stolen by entities who include it in their commercial projects without permission or compensation and sometimes even try to pass it off as their own. My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.

. . . .

When I say “stealing” I am not talking about the hobbyist who puts my music in their climbing video. I am not talking about the young dancer who posts a video of her routine to one of my songs. I am not talking about the gamer who posts videos of their gaming sessions with my music as soundtrack. I am not talking about the wedding photographer who has my music as the soundtrack to their photography slideshow. I am not talking about my work used in a meme. In fact, I am not talking about most of the 22,000 third-party videos on Youtube with my music in the background. I don’t see any of that as stealing, I see it as a compliment. It says to me “I love your work and I love it enough that I did my own work to it and here it is for the world to see”.

. . . .

While legally most of these uses of my songs and recordings are technically infringing, I do not view these uses of my music as problematic and I do not block upload of such videos to YouTube.

Every now and then I will stumble on a usage that I find offensive, like a homemade anti-abortion video. I’ve gone through the take-down process and written to the creator of a video asking them to remove my music. It’s offensive to my moral rights as an artist, which are unprotected in the US, but because the usage does infringe my master and synchronization rights, I can have it taken down. I haven’t been tested on this thankfully, but I would not bring suit against an individual unless they blatantly refused to remove my music.

So, what is the “stealing” that I would use the CASE act for?

– Stealing is when someone writes asking to use my work, doesn’t accept the fee my licensing agent quotes them and uses it anyway.

– Stealing is when my work is knowingly used inside another work and my work is passed off as someone else’s.

– Stealing is using my work in something, charging for it and not crediting me in the hope I won’t find out.

Financial losses aside, I find these last two kinds of thefts emotionally devastating. When I learn of a funded production that used my music as an integral part and didn’t credit me, I feel such incredible sadness. I feel bereft, like something I care deeply about was taken from me. I feel taken advantage of. My first response is often tears. An infringement, particularly one from a creative production — artists stealing from other artists — is profoundly shattering.

Link to the rest at Medium

Here’s a link to the proposed legislation (It’s not a law yet and may or may not become one in the future)

Although PG suspects some will misuse the CASE Act (just as some misuse a variety of other laws), as a general proposition, he thinks it’s a good idea.

For small-time infringers, an official document arriving from a government agency will, in many cases, prompt cessation of infringement, a little like a super takedown notice with teeth. Hopefully, the experience will also deter future copyright infringement by such individuals.

Since participation in proceedings under the CASE Act process is voluntary (a copyright owner can elect the CASE route instead of filing suit in federal court and the recipient of a notice that a CASE complaint has been filed can remove the matter to federal court), it’s not mandatory. As a practical matter, removing a matter that begins as a CASE complaint will require the hiring of an attorney by each side, however, so this may present an opportunity to settle the dispute.

As with any dispute resolution forum, crazy people will sometimes file CASE complaints against sane people who have committed no wrong. Judges and Hearing Officers generally have more experience than they would wish with crazy people, however, and PG would be surprised if summary dismissal of a CASE complaint brought by a crazy person would not be relatively easy to achieve.

Filing a prompt registration of the author’s copyright to a creative work is always a good idea (and probably does not require an attorney), but if CASE becomes a law, sending a copy of the author’s registered copyright to the book that allegedly infringes the work of another will likely be another way to resolve CASE complaints filed in bad faith.

Indeed, if a CASE complaint is filed in bad faith, the filing of a CASE counterclaim by the true author against the bad faith filer may serve as a deterrent against future bad behavior.

Is CASE likely to help an individual author whose work has been misappropriated by a large publisher,  motion picture studio, etc.?

PG suspects not. Such large organizations have ready access to counsel who will be competent in copyright litigation in federal court and will be quite likely to cause the CASE complaint to be removed to federal court.

Again, CASE isn’t a law and may never become the law. Those supporting CASE have tried and failed to get the legislation passed before. If CASE does become the law, the resulting law may be much different than the current bill PG linked to above and which provides the basis for PG’s commentary.

And finally, although PG is an attorney, he doesn’t provide legal advice in TPV blog posts. Those requiring legal advice will need to retain an attorney to provide such advice for them.

From InternetCases:

Plaintiff freelance photojournalist sued defendant website publisher for copyright infringement over photos plaintiff took of a luxury maximum security prison in Norway in 2010. Defendants posted the photos on its website in 2011 without permission, in connection with a widely-publicized story of a notorious mass shooter being relocated there. Plaintiff registered the copyright in his photos in 2015 and filed suit in 2018, claiming that he did not learn of the alleged infringement until 2016.

Each party filed motions for summary judgment. Plaintiff claimed that the court should enter summary judgment in his favor because he had a valid copyright to the photographs, and there was no dispute that defendant published several of them without authorization. Defendant asserted that plaintiff’s claims were time-barred by the Copyright Act’s three-year statute of limitations, because he knew, or should have known, of the infringement when interest in the photos spiked following the remand of the alleged mass murderer to the prison where the photos were taken.

. . . .

The court found there was no genuine issue as to any material fact concerning plaintiff’s ownership of the copyright in the photos. And defendant conceded it published the photos without authorization. Defendant had challenged whether plaintiff’s copyright registration covered the photos at issue. Plaintiff had not introduced the deposit materials, but had submitted a sworn statement saying the photos had been included in the registration. The court found the sworn statement to carry the issue – had the defendant filed a motion to compel or sought the deposit materials from the copyright office, it may have been able to show the photos were not included. But on these facts, it was clear to the court that the copyright registration covered the photos.

. . . .

The court denied defendant’s motion for summary judgment, finding that the copyright infringement claims were not barred by the statute of limitations. Civil actions for copyright infringement must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). The Second Circuit has stated that the “discovery rule” governs when the statute of limitations begins to run: an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.

Link to the rest at InternetCases

From Music Business Worldwide:

If you hadn’t noticed, tensions between the music publishing community and Spotify have taken a turn for the sour in recent months.

This all began in March when Spotify, alongside other music streaming operators like SiriusXM/Pandora, Google and Amazon, lodged an appeal against mandated pay rises for songwriters and publishers in the US.

The headline news about that pay rise, decided by the US Copyright Royalty Board, was that mechanical streaming payouts from the likes of Spotify would rise by 44% or more between 2018 and 2022.

It turns out, however, that there was some additional and under-reported complexity to the CRB decision concerning Spotify’s student discount offers and its family plan bundles – which allow up to six family members to stream Premium Spotify for a single price of just $14.99 a month.

“According to the new CRB regulations, we overpaid most publishers in 2018… rather than collect the 2018 overpayment immediately, we have offered to extend the recoupment period through the end of 2019.”

Spotify spokesperson

Because of this additional complexity, Spotify has now calculated that, retrospectively, according to the CRB decision, many music publishers actually owe it money for 2018, due to an overpayment based on the prior rates. And guess what? It wants that money back.

Spotify told the publishers the news this week and, as you can imagine, these companies – already up in arms over Spotify’s CRB appeal – are fuming about it.

One senior figure in the music publishing industry told MBW: “Spotify is clawing back millions of dollars from publishers in the US based on the new CRB rates that favor the DSPs, while appealing the [wider CRB decision]. This puts some music publishers in a negative position. It’s unbelievable.”

Spotify isn’t expecting the publishers to hand over the money that it’s owed right away; instead, this negative balance will be treated as an advance by the company, which will be recouped from its 2019 royalty payouts to publishers (and, by association, their songwriters).

. . . .

David Israelite, the CEO of the National Music Publishers Association who has consistently and publicly decried Spotify’s CRB appeal, told MBW in response to Spotify’s request for reimbursement from the publishers: “I find it so hypocritical for a digital service that is appealing the CRB decision to then take advantage of the parts of that decision that benefit it. I guess we shouldn’t be surprised.”

Link to the rest at Music Business Worldwide

PG says this sounds like the behavior of an organization that holds a monopoly position in the music business.

More on the lawsuit of photographer Lynn Goldsmith against the Andy Warhol Foundation claiming that Warhol violated the photographer’s copyright to the photo.

PG just received a comment from the photographer’s attorney who says (Suprise) the OP in ArtNews did not properly report the factual background for the suit and the photographer’s arguments.  This link takes you directly to the comment.

In a prior life, PG was counsel in a couple of lawsuits which were the subject of news articles. Based upon his experience and conversations with other attorneys who had similar experiences, PG always takes reports about lawsuits written by non-lawyers with many grains of salt.

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

From The New York Times:

It’s not easy to be a songwriter in the pop world these days. Listeners rarely see your name. For anything but a giant hit, royalties from streaming are infinitesimal — and big tech companies seem to want to keep it that way.

And then there’s the shadow of “Blurred Lines.”

Four years after the copyright trial over that No. 1 song — in which Robin Thicke and Pharrell Williams, its primary writers, were ordered to pay more than $5 million for copying Marvin Gaye’s disco-era hit “Got to Give It Up” — the case still looms over the music industry and individual songwriters, who were left to wonder when homage bleeds into plagiarism.

Intellectual property lawyers and music executives interviewed for this article said the case had fueled a rise in copyright claims. In September, Ed Sheeran will go to court to defend “Thinking Out Loud,” a Grammy-winning song that has been accused of mimicking another Gaye classic, “Let’s Get It On.”

. . . .

The aftereffects of the “Blurred Lines” decision — which was upheld on appeal last year — have been felt most acutely by rank-and-file songwriters, who work in obscurity even as their creations propel others to stardom. The ramifications for them have been inescapable, affecting royalty splits, legal and insurance costs, and even how songs are composed.

The songwriter Evan Bogart, who has written for Beyoncé, Rihanna and Madonna, described second-guessing himself in the studio, worried that a melody or lyric might cross a line he can no longer locate.

“I shouldn’t be thinking about legal precedent when I am trying to write a chorus,” Mr. Bogart said.

Most accusations of plagiarism never go before a judge. Instead, they are settled quietly — and often protected with confidentiality agreements — with the results evident only in the fine print of writing credits.

. . . .

Occasionally, an outlying case will force industrywide adjustment. In 1976, for example, songwriters had to reckon with the idea of unintended infringement after George Harrison was found to have “subconsciously” based his first solo hit, “My Sweet Lord,” on a girl-group classic, the Chiffons’ “He’s So Fine.” After the decision, Mr. Harrison wrote in his memoir, he felt a “paranoia about songwriting that had started to build up in me.”

The “Blurred Lines” case, many lawyers and executives say, has become the latest watershed, putting the commonly understood rules of songwriting up for debate.

As songwriters often remark, there are only so many notes in the scale, and influence is essential to the art. Harvey Mason Jr., a songwriter and producer, said the “Blurred Lines” case “unnerved a lot of people writing songs, because a lot of what inspires creative people is the work that has been done before.”

. . . .

At the “Blurred Lines” trial, an eight-person jury heard detailed and esoteric testimony by expert witnesses from both sides about what, if anything, Mr. Thicke and Mr. Williams had copied from “Got to Give It Up.” The Gaye estate contended that specific musical passages had been lifted. Lawyers for Mr. Thicke and Mr. Williams countered that they had simply created a genre piece with a similar groove and feel, the kind of thing that musicians — and copyright lawyers — had long considered fair game.

In a dissenting opinion published when the case was upheld last year, Judge Jacqueline H. Nguyen of the United States Court of Appeals for the Ninth Circuit argued that the verdict allowed the Gaye estate “to accomplish what no one has done before: copyright a musical style.”

Mr. Thicke was also a fickle witness. He had given interviews citing “Got to Give It Up” as inspiration for his song, only to deny it in depositions, saying he had been intoxicated when talking with music journalists.

“I doubt if any more artists will tell Rolling Stone where they got their inspiration,” Tor Erik Hermansen, part of the songwriting and production duo Stargate, said in an interview.

Although the case did not result in any changes to copyright law, it has had a palpable effect. More songwriters are arming themselves with expensive insurance policies. And musicologists — academically trained experts who sometimes consult in copyright cases — are in greater demand.

. . . .

Songwriters now face heightened scrutiny of their work while it is still in progress, as record companies and music publishers sometimes vet new songs for echoes of past works.

“I’ve had a couple experiences where I was writing something and a lawyer and musicologist said, ‘It sounds like this old song, it’s a very active estate, they’re going to come after you,’” said Mr. Mason, who has worked with stars like Whitney Houston and Kelly Clarkson. “I changed a few notes.”

Link to the rest at The New York Times

From Artrepreneur:

Go to any art museum in the world and you’ll find hundreds of visitors with cameras in hand, snapping photos of their favorite, well-known works. Many of these great pieces no longer have copyright protection yet, these institutions often sell merchandise such as posters that claim the Museum has copyright ownership. As a copyright holder, that institution would have the exclusive right to reproduce the work, make derivatives of it, publicly display it, and distribute it. Conversely, that also means the copyright holder can stop anyone else from doing those things. Take the Monet poster of The Four Trees from the Metropolitan Museum of Art in New York City, shown here. This poster includes a copyright notice:  © 2010 MMA.

If the Monet is in the public domain, meaning free from copyright protection, then how can the Met Museum claim copyright on such an old work? If The Four Trees is really copyright free, then can someone sell an image of the work? Can the Met Museum stop someone from taking a photo of the painting and selling that photo or creating posters from it?  For that matter, who would hold a copyright on a photo of a copyright-free work?

. . . .

Let’s start with some basic tenets of copyright protection. First, the Copyright Act says that copyright protection is available for “original works of authorship fixed in any tangible medium of expression . . . ”  That’s just a fancy way of saying that the work is new and unique. It isn’t a copy or based on someone else’s work and the work has been produced onto something tangible that enables it to be perfectly reproduced and shown to others, such as a work on paper, photos from a digital camera, or a .jpg image file.

. . . .

In addition, the courts have said that for a work to be copyrightable, it must have some level of creativity. Admittedly, this is somewhat subjective and there is no “bright line” from which we know must be crossed to determine the level of creativity required. However, in general, the required level of creativity is very low.

So, if a work fits these criteria; original, tangible and creative, then copyright is automatic and immediate. For example, if you take a photo of your friends with your iPhone camera, the photo is automatically copyrighted because 1) the composition of the photo such as the placement and position of your friends and the setting is unique and original; 2) the choices you made when taking the photo, such as the angle  and distance is considered creative; 3) the photo is captured by the camera sensor so it is fixed in a tangible medium. All three criteria are therefore met.

. . . .

Now that we know the basic factors for copyright eligibility, let’s use these concepts to analyze whether the Met Museum can claim a copyright for the Monet poster. First, we know the poster is fixed in a tangible medium. In this case, it is the paper the poster is printed so that part is fine.

What about originality? One could argue that the Met Museum has merely reproduced Monet’s work so from that perspective it is just a copy and therefore, not original. In addition, Monet’s The Four Trees was created in 1893, and as discussed, any work created prior to 1924 is in the Public Domain. Reproducing artwork that is in the Public Domain cannot extend copyright protection; otherwise, every time a creative work had reached the end of its copyrightable life, the author could just take a picture of it to renew its copyright. The requirement for a limited time would essentially be meaningless.

If the Monet Poster is merely reproducing the Monet, then it cannot claim copyright protection.

. . . .

Well, the copyright isn’t in the Monet painting but in the poster itself.  If the creator of a work incorporates preexisting material from another creator, such as public domain or other copyrighted works, into his or her new work, the new work can receive a copyright if 1) the creator disclaims the preexisting material and 2) the remaining part of the work is copyrightable (i.e. original, in a tangible medium) and has some creativity.

. . . .

The Monet poster is no different. Monet’s The Four Trees is not the sole element on the poster but includes text that is not haphazard but designed, even if the design is a simple one. The position of the text on the page, the font, and size, as well as the choice of color (or lack thereof), are all creative choices and are unique to this poster. So, the Met Museum is claiming copyright protection for the layout of the poster, not the Monet itself, which it would have to disclaim.

. . . .

While taking a photo of a Public Domain work is free to sell from a copyright perspective, there are other legal issues to consider. One of these issues is contract law. When you buy your ticket to enter a museum, even if the museum is free to enter, there are usually Terms of Service that you agree to in exchange for entering the museum. The terms dictate behavior and rules of the museum and can be far-reaching, including expected behavior, age limits, use of certain equipment or even what size bag you are allowed to bring into the museum.

You automatically agree to the Terms of Service when you step onto the museum grounds. An explicit agreement, acknowledgment, or even knowing where to find them is not required. The Terms of Service are unique to each museum and can vary widely, especially between private, public or government-subsidized institutions. Most will include a section related to photography.

The Met Museum’s photography policy states:

“Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as “No Photography”; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall. “

According to these terms, despite the copyright issues discussed earlier, selling photos taken within the museum is prohibited and override any issues of copyright. So even though the work is in the Public Domain and the only place to take a true photo is at the Met Museum, you would still be unable to sell the photo taken there.

. . . .

So how can museums copyright paintings from old masters? As we have seen, they can’t. What they can do, though, is copyright the poster and place the copyright notice in such a way that it misleads people into thinking that they have this right.

Link to the rest at Artrepreneur

PG suggests that a wise museum director would think twice before attempting to enforce a “contract” printed in mouse type on the back of a ticket. (As a point of clarification, prior to the existence of computer mice, “mouse type” referred to tiny, almost unreadable type sizes used for disclaimers of various sorts).

A couple of litigation strategies and some other thoughts come to mind:

1. One might argue that the form of the contract was inherently deceptive and unenforceable in that it was purposely designed to discourage reading.
   1. One might interview a random sample of museum patrons to ask them what agreements they made with the museum when they entered the museum and whether they had even noticed the existence of a contract on the back of their ticket.
   2. In such case, PG posits that one would be lucky to find one patron out of one thousand who knew anything about the terms of the “binding contract.” Is this a species of consumer fraud perpetrated by the Met?
2. Since young persons frequently come to art museums, is the museum attempting to bind them to a contract when they are too young to enter into contracts under state law?
   1. As can be attested by large numbers of parents and grandparents, any child can take a photo with an iPhone.
   2. If a child takes a photo of a Monet on a school outing, can the child’s parent who was at work and didn’t go to the museum (and thus, was not bound by the “contract” on the back of the child’s ticket) exploit it commercially?
   3. In fact, if a group arranges a visit to the Met, does each member of the group actually receive a ticket with the “contract” language on the back? If the group is comprised of school children, does each parent sign a document that includes the terms of the Met’s contract, agreeing to be bound by that contract?
3. PG has not entered the Met Museum for many years, but he doubts mouse type on the back of the Met’s tickets meets legal requirements necessary to accommodate those with vision impairment or other disabling conditions under various federal and state laws.
4. One might argue that the Met’s photography policy is a poorly-disguised attempt to circumvent the copyright laws of the United States and France (and the various international copyright treaties entered into by each country over the years since Monet made his painting) by effectively extending copyright protections far beyond the terms permitted under the laws of the United States and such treaties.
   1. As the OP describes, the US Constitution permits Congress to enact copyright laws for the purpose of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
   2. Whatever copyright protections Oscar-Claude Monet, the creator of the work, may have held have long expired, but the Met still deceptively attempts to treat the painting as somehow protected from unauthorized copying and reproduction in a manner equivalent to copyright protection.
   3. The Met helpfully provides the provenance of the painting:
      1. [Knoedler, New York, until 1893; stock no. 7287; their sale, American Art Association, New York, April 14, 1893, no. 362, as “The Four Trees (Poplar Series),” for $1,175 to Durand-Ruel]; [Durand-Ruel, New York, 1893–95; stock no. 1063; sold on January 12, 1895 to Havemeyer]; Mr. and Mrs. H. O. Havemeyer, New York (1895–his d. 1907); Mrs. H. O. (Louisine W.) Havemeyer, New York (1907–d. 1929; cat., 1931, p. 160, ill., as “Landscape—Les Quatre arbres”)
      2. In each of the transfers of the painting, beginning with its sale by Monet, was copyright to the painting explicitly transferred or, in the absence of an explicit copyright transfer, did Monet retain copyright and merely transfer the painting itself? Where’s the proof?

PG has blathered for too long. As an amateur photographer, he has always been annoyed by museums’ attempts to force patrons to purchase an often second-rate photograph of an artwork from the museum instead of permitting PG to take a more pleasing (at least for him) photo of his own for his personal enjoyment.

From TorrentFreak:

Over the past two years, there’s been a wave of copyright infringement lawsuits against alleged cheaters or cheat makers.

Take-Two Interactive Software, the company behind ‘Grand Theft Auto V’ (GTA V), is one of the major players involved. The company has filed several lawsuits in the US and abroad, targeting alleged cheaters.

Last August the company filed a case against Florida resident Jhonny Perez, accusing him of copyright infringement by creating and distributing a cheating tool. The software, known as “Elusive,” could be used to cheat and grief, interfering with the gameplay of others.

The “Elusive” cheat was previously sold online at prices ranging from $10 to $30, depending on the package. Before filing the lawsuit, Take-Two attempted to find out exactly how much money was made in the process, but Perez failed to hand over detailed financial records.

. . . .

According to the company, it’s clear that the cheat maker is guilty of both direct and contributory copyright infringement. As such, it asked the New York federal court for the maximum statutory damages amount of $150,000, plus $69,686 in attorney’s fees.

Take-Two argued that these damages are warranted because the cheating activity resulted in severe losses. According to an estimate provided by the company, the harm is at least $500,000. In addition, the maximum in damages should also act as a deterrent against other cheat developers.

. . . .

“Mr. Perez’s Elusive program creates new features and elements in Grand Theft Auto which can be used to harm legitimate players, causing Take-Two to lose control over its carefully balanced plan for how its video game is designed to be played,” he writes.

In addition, the Judge notes that the cheat discouraged users from future purchases and gameplay and that the unlimited currency cheat undermined Take-Two’s pricing and sales of legitimate virtual currency.

. . . .

In addition to the monetary damages, the Court also issued a permanent injunction prohibiting the cheat maker from continuing infringing activities moving forward.

Elusive hasn’t been available for sale since last year. It was taken offline after Perez was contacted by Take-Two.

“After discussions with Take-Two Interactive, we are immediately ceasing all maintenance, development, and distribution of our cheat menu services,” a public announcement read at the time.

At the time, the cheat maker informed its users that it would donate the proceeds to a charity which Take-Two could pick. However, the default judgment makes it clear that this money should go directly to the game company instead.

Link to the rest at TorrentFreak

PG says that, unsurprisingly, the author of the OP doesn’t seem to understand the difference between obtaining a court judgment against an individual defendant and actually collecting money from that defendant.

PG will make a few comments about collecting debts under the US federal and state court systems below. Different states have different laws and practices concerning the collection of a civil judgment against an individual or corporation, so, if anyone visiting TPV is trying to collect such a judgment, he/she will have to contact an attorney in the jurisdiction that issued the judgment.

As a general proposition, in the United States, an individual is not going to be sent to jail for failing to pay a civil court judgment such as the one which appears to be involved in the OP. While a great many states used to have debtor’s prisons, imprisonment for an unpaid civil debt is, for all intents and purposes, unconstitutional in the US unless it is clear the individual has the money to pay the debt.

If an individual fails to pay a criminal fine and a court determines that the individual has the means to do so, after being warned to pay the fine or work out a payment plan with the district attorney/state’s attorney/city attorney/etc., such an individual may be subject to imprisonment for contempt of court and would typically be held in jail until he/she paid the fine. After all, it would not be unusual for a violation of a criminal law to carry the threat of being sent to a local jail or imprisoned in a state or federal penitentiary as potential punishment. “Pay the fine or do the time,” is often a short-hand summary for criminal punishment.

Similarly, payment of court-ordered child support is treated as a special case and the failure to pay support when the individual has the means to do so may result in jail confinement for contempt of court. In this type of case, the court will often require that the non-custodial spouse pay a lump sum toward back child support and promise to continue regular child support payments thereafter as a condition of release.

Suffice to say, if an individual is unable to work, he/she is unlikely to continue to receive the fruits of his/her labor for very long, so those who are entitled to receive child support and family law courts will often try other means of pressuring an individual to make payments in lieu of incarceration.

For example, if the individual with the child support obligation is self-employed and works Monday-Friday, a court might order the individual jailed on Saturday and Sunday for contempt, then released on Monday morning to go back to work.

If an individual is employed by a third party, at least a portion of the money the third party owes that individual as salary may be garnished by the court so the employer pays part of the salary to the individual and part of the salary to the court to be turned over to the person who has a judgment against the employee.

Bank accounts, real estate, automobiles, etc., are also subject to seizure and, in the case of real estate and automobiles, for sale at an auction or some other public method of turning things into cash for payment of an individual’s civil debts.

Court records in most cases are public documents, so a judgment issued against an individual will almost certainly be discovered by various credit bureaus and be added to an individual’s credit report to that individual’s detriment. Ditto for judgment issued against a company.

The process of collecting most judgments in the United States will vary from state to state and between different courts operating within the same state. The disappointing bottom line for some people who win a court case in which the loser is ordered to pay the winner some money is that the winner will have to retain counsel for additional assistance in collecting the money. The court will usually not provide much in the way of affirmative assistance to help an individual collect the money the court has just awarded the individual.

PG’s general suggestion, one he has provided to countless clients over the years, is, “Don’t do business with crooks.” The chances of enjoying a profitable and hassle-free business relationship with a crook are not very good.

A corollary in the world of romance is “Don’t marry a crook” and, married or not, “Don’t have children with a crook.”

PG’s practical advice about avoiding crooks applies to the publishing world just like it does everywhere else. While a great many people are honest, at least some crooks infest every line of business. If a publisher fails to faithfully honor its obligations to other authors, including its obligations to calculate royalties fairly and pay them promptly, the chances that publisher will make an exception to its normal dishonest business practices for any particular new author are remote.

PG will repeat his standard disclaimer once again:

Nothing PG posts on TPV should be understood or relied upon as legal advice. You obtain legal advice by retaining a lawyer, not by reading a blog. PG only provides an overview of various legal topics on TPV for the general information of authors and others, not to assist anyone in understanding or resolving a particular legal issue.

PG is a lawyer, but he is not your lawyer unless and until you and he have a conversation about your legal issues and both of you signs a written retainer agreement under which PG is to provide legal services to you.

From The Hollywood Reporter:

For the past decade, a number of prominent musicians including Tom Petty and Bob Dylan have quietly attempted to reclaim rights to songs by serving notices of termination to publishers and record labels. Often, like in the case of Prince, these notices become invitations to renegotiate deals for more favorable royalty arrangements. But according to lawsuits filed Tuesday in New York federal court, in the face of hundreds of termination notices, UMG Recordings and Sony Music have “routinely and systematically refused to honor them.”

The named plaintiffs in the UMG case are John Waite, a solo artist and former lead singer of the 1970s group The Babys, and Joe Ely, who has recorded 18 solo albums and also was a performer on works by The Clash and Rosie Flores. In the Sony case, David Johansen of The New York Dolls, John Lyon (known as Southside Johnny) and Paul Collins of The Beat are hoping to lead the charge.

They are looking towards the Copyright Act of 1976, which extended the term but also gave artists who bargained away rights during the early part of their careers a second bite at the apple by allowing them to terminate copyright grants during the latter portion of the copyright term.

. . . .

The newest lawsuits state that UMG and Sony are regularly taking the position in response to termination notices that recordings are “works made for hire” because of contractual language in recording agreements.

“As a result of UMG’s policy, UMG has refused to acknowledge that any recording artist has the right to take over control of the sound recordings, or enter into an agreement with a different label for the exploitation of recordings, after the effective date of termination,” states the complaint. “In many instances, UMG has continued to exploit the recordings after the effective date, thereby engaging in willful copyright infringement of the United States copyright in those recordings.”

. . . .

Not only are UMG and Sony being sued for infringing the copyrights of many of the songs in their respective catalogs, but the plaintiffs seek declaratory relief that sound recordings can’t ever be considered “works made for hire” under the law, that release of sound recordings in album format doesn’t constitute a “contribution of a collective work” or “compilation” (other exceptions to termination), that foreign choice of law provisions in contracts don’t have any effect on U.S. copyright law with respect to the termination powers, that sound recordings aren’t “commissioned works,” and that recording artists aren’t barred from terminating based on the use of loan-out companies.

Link to the rest at The Hollywood Reporter

Attentive readers will note the term, “loan-out companies” in the OP and wonder what those are.

From Forbes:

Entertainers such as actors and musicians often set up loan out corporations as a way to protect their assets and obtain certain tax benefits. The basic way a loan out corporation works is that the entertainer – an actor, for instance – is an “employee” of the loan out corporation. The corporation then enters into contracts with other businesses such as a production company. Then the loan out corporation “loans out” the services of the actor to the production company.

How does it work? The loan out corporation receives monies from contracts with other businesses and pays a salary to the entertainer for services performed. Meanwhile, the loan out corporation provides essential services to the entertainer, from accounting and legal, to coaching and agency fees. All business expenses incurred are deductible because the entertainer is officially an employee of the loan out company. 

“Wealthy celebrity clients are increasingly approaching advisors about the benefits of loan out corporations. The structures are easy to establish and maintain while offering a wide array of tax mitigating possibilities,” explains Evan Jehle, a partner at LVW/Flynn. “Loan out corporations are also being utilized as vital components of asset protections strategies for high-profile ultra-wealthy families. Wealth and fame make athletes and entertainers particularly attractive targets for financial predators and frivolous lawsuits. Because loan out corporations are separate legal entities, the personal wealth of the entertainers is protected from liability connected to the corporation.”

Link to the rest at Forbes

From Trademark and Copyright Law:

As a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings.

. . . .

Most start-up companies overlook copyright issues, however, and this can create problems down the road.  In this article, we identify the most common traps that we see start-up companies fall into, and provide recommendations for how to avoid them.

Trap for the Unwary #1: Paying Someone to Create Content Does Not Mean That You Own It

One of the most common mistakes companies make in the early stages is to fail to shore up — in writing — ownership rights to content created for the company.  Many companies think that, by hiring someone to write content such as website text, software programs, or training manuals, the company automatically owns that content.  Not true!

The term “work for hire” is one of the most misunderstood terms in copyright law, and it seldom covers anyone but a true employee (i.e., someone who gets a W2 tax form from the employer, as opposed to an independent contractor).

As a general matter, an individual who creates content, by putting an original work of authorship into a tangible medium of expression, owns the copyright in that content at the moment of its creation unless (1) the individual is an employee who creates the work in the scope of his or her employment; or (2) the individual previously signed a written contract acknowledging that the work is a “work for hire” and the work is one of a few categories narrowly defined in the Copyright Act under the definition of “work for hire” (i.e., “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”).

Thus, very few non-employees will fall into the “work for hire” category.  It is therefore crucially important that such individuals execute written assignments so that the copyrights are transferred to the company.  To the extent that a non-employee content creator is working for the company pursuant to a written contract, that contract can impose upon the independent contractor the obligation to execute copyright assignments, and even give the company the power of attorney to execute such assignments on his or her behalf.

As copyrights can only be transferred in writing, it is important for start-up companies to obtain the necessary written assignments before its independent contractors move on or disappear.

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Copyright Registration and Notice Strategy

If your start-up company is in the business of content creation, in addition to following the guidelines above, it is important to implement a copyright registration strategy at the outset.  Copyright registrations are relatively inexpensive to obtain, and allow the company to seek statutory damages and attorneys’ fees for any infringement commencing after the registration date.

Copyright registrations are also useful because they put your competitors on notice of your intellectual property rights.  This can be valuable if you are seeking copyright protection for documents or materials that your competitors might not otherwise consider proprietary, such as customized forms or user interfaces.

You do not need to obtain a copyright registration to include a copyright notice on your materials, and it is a good idea to use such a notice wherever possible.  The proper form of the notice is the symbol © or the word “Copyright,” the year of first publication of the work, and the name of the copyright owner or an abbreviation by which the name can be recognized.

For example: © 2015 Foley Hoag LLP

You should also consider adding whatever other proprietary language may be appropriate, particularly if the distribution of the materials is restricted.

For example:  For use by customers of [company name] only.  Further copying or distribution is strictly prohibited.  For permissions, contact [legal@companyname.com].

Link to the rest at Trademark and Copyright Law