THE COPYKAT

French media organisations have lodged a complaint against Google with the country's competition authority in a move over the US internet giant's refusal to pay for displaying their content. In fact the internet platform has taken the decision not to show their content at all - which in turn has reduced traffic to those sites.  Earlier this year France implemented the recent EU copyright reforms - one aim of which was to ensure publishers are compensated when their work is displayed online.  Google won't pay - but with the law now in place will only display content if they are granted gratis permission. And the APIG press alliance is not happy. Not happy at all - not least because their members have lost visibility and presumably advertising revenue - and the media organisations say the giant is abusing its dominant position in the market. French President Emmanuel Macron has already voiced his support for the press, saying that no company can "break free" of the law in France.''

A Colombian writer is appealing a Miami federal court’s ruling that Netflix's hit show “Narcos” does not infringe copyright in her memoir about her experiences with drug lord Pablo Escobar. The US District Court in Florida said that the common aspects of two scenes from “Narcos” and Virginia Vallejo’s book “Amando a Pablo, Odiando a Escobar” were factual -and not protectable. The case will go to the Eleventh Circuit Court of Appeals. 

A new report from the European Union's Intellectual Property Office that between 2017 and 2018, overall access to pirated content in the EU fell by 15.1% on average, and shows that online piracy among young internet users continues to decline - with a major factor being the development of legal and accessible music, video and gaming platforms. Of course piracy amongst  the 15-24 year generation hasn't gone away from an age group where 97% stream or download music, 94% stream or download movies and TV series, 92% play online video  games,  and 79% who find other TV shows and sporting events: a third of those surveyed still accessed at least some of their online content from unlicensed sources, but this number is in decline particularly with music. The report says that young people will still find illegal sources of material they cannot easily access legally - in particular movies, TV shows and sport. More here.

The High Court in London has found that the patterns on the lid of a make-up powder palette and embossed on the powder itself could constitute protectable copyright works. The  decision in the case,  Islestarr Holdings Ltd v Aldi Stores Ltd  [2019] EWHC 1473 (Ch) dismissed Aldi’s argument that the ephemerality of the powder design meant that it was not sufficiently fixed to be granted copyright protection. Deputy Master Linwood used the  examples of the copyright protection granted to sand sculptures that are washed away by the tide - and a personalised wedding cake that will be eaten can still constitute a copyright work. The Deputy Judge held that Aldi had no real prospect of successfully defending Islestarr's claim for copyright infringement of each design. More from Hugo Cox on this case here.

Fashion firm Marc Jacobs has newly submitted new arguments as to why it has not infringed the intellectual property rights of Nirvana by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band's merchandise. Marc Jacobs has so far failed to have Nirvana LLC's claim dismissed with the judge overseeing the case ruling  "a review of the images confirms that the allegation as to substantial similarity is sufficient". Now Marc Jacobs has now filed some new documents with the courts that include copyright and trademark law technicalities, and a challenge to whether or bot the claimant owns the original wobbly face image. On subsistence, Marc Jacobs cite rules and practices of the US Copyright Office which, they say, confirm that Nirvana's wobbly face image does not meet the requirements to be protected by copyright. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer, and that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band's company through either explicit or implicit agreement.

And more from the world of fashion - this case from the USA where a Montana based clothing company called All Season All Terrain (ASAT) Outdoors is suing New York-based fashion company Supreme for copyright infringement after Supreme sold clothing printed with a copyrighted camouflage design. ASAT has told the New York District Court.that it has owned the copyright on a camouflage design since it was created in 1985.

A Japanese government panel has now approved a plan to limit the scope of what is considered illegal downloading of any copyrighted work,  including manga, computer games and literary writings, reversing its initial plan to restrict such online activity more broadly. The Cultural Affairs Agency panel said a future amendment to the copyright law would not apply to partial downloads of copyrighted works, such as a few frames from a comic book or a screenshot of a copyrighted image. In the new proposal, the panel said further discussions were needed to decide whether to narrow the scope of illegal acts to the downloading of complete original works, excluding parodies and derivative works, and downloads from piracy websites.

The World Intellectual Property Organisation (WIPO) has called for public comments as part of its process to develop a policy on Artificial Intelligence and Intellectual Property Rights. The call is available here and is open until February 14th 2020.  “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,” said WIPO Director General Francis Gurry adding "Machine learning relies on information in the form of electronic data, which is also at the heart of intellectual property and innovation in a global digital economy. I invite everyone with an interest to assist us in formulating the questions that are confronting policy makers and to share with us their expertise in order to have a focused dialogue.

And finally, US audio streaming service TuneIn is appealing against last month’s High Court judgment which it says is “fundamentally bad for freedom of expression on the Internet and cultural diversity” (in the United Kingdom).Tunein is the internet radio service, available online and via an app, which has both free and premium versions. The Kluwer Copyright Blog has more on the decision by Mr Justice Birss in Warner Music & another v TuneIn Inc [2019] EWHC 2923 (ch). 

THE COPYKAT

Reuters report that France is pushing for the creation of a European-wide regulator of digital platforms including Google and YouTube, to sanction any possible abuse of power. A spokesperson cited the dispute between Google and European publishers saying “A big American company, Google namely, has announced it would not comply with an EU copyright directive,” the official told reporters. “France and Germany share the view that... we have to put an end to this illegal behavior.”

And more on Google: In a U.S. Supreme Court filing, the Justice Department has urged the court  to deny Google’s petition for review of a pair of rulings that put the company on the line for billions of dollars in damages for infringing Oracle’s copyrights in the Java computer code. Reuters say that Google’s lawyers at Goldstein & Russell have argued that the case presents important questions about the copyrightability of certain kinds of computer code and fair use of that code. The Justice Department, however, said in Friday’s brief that the copyrightability question has already been resolved definitively - and that the Google case isn’t a good vehicle for the Supreme Court’s consideration of fair use.

The Verge reports that alleged copyright troll Christopher Brady will no longer be able to issue DMCA takedowns to YouTubers. According to a lawsuit settlement, an agreement has been reached and  Brady is banned from “submitting any notices of alleged copyright infringement to YouTube that misrepresent that material hosted on the YouTube service is infringing copyrights held or claimed to be held by Brady or anyone Brady claims to represent.” Brady agreed to pay $25,000 in damages as part of the settlement. He is also prohibited from “misrepresenting or masking their identities” when using Google products, including YouTube.

Queen have joined the long list of bands who have taken action against President Trump for using their music without permission. A campaign video featuring 'We Will Rock You' has been removed from his Twitter following a copyright complaint from the band’s publisher. According to Buzzfeed, within hours of the video going live Queen had "already entered into a process to call for non use of Queen song copyrights by the Trump campaign”. After being viewed more than 1.7 million times, the video was disabled by Twitter and the post now reads: "This media has been disabled in response to a report by copyright owner.” They join REM, Prince, Neil Young, Rihanna, Nickleback and Adele (amongst others) who have objected to Trump using their music. More details on Nickleback's recent takedown can be found here. A Twitter spokesperson told CNN that the company responds to copyright complaints sent to them by a copyright owner or their authorised representatives.

Why bring a Trade Mark claim in place of a copyright claim? Well it seems that the super secret street artist Banksy might be doing that to avoid revealing his true identity. Above the Laws's take on this is "Banksy’s Fake Store Is An Attempt To Abuse Trademark Law To Avoid Copyright Law" but it's an interesting story in Banksy's attempt to stop a small greeting from selling “fake Banksy merchandise.” Full Colour Black "run a small business that does photography and sells cards involving public graffiti". Above the Law say this "But… that’s all about copyright. In reading the news coverage of all of this, I was stumped as to why were were discussing trademark at all — until I realized something kind of important. Banksy is using trademark because Banksy can’t use copyright without revealing who Banksy is". And Full Colour Black’s lawyer, Aaron Wood, explained “We are contesting the validity of one of his [Banksy's representing company Pest Control Office Limited] EU trademarks on the basis that he has freely permitted it to be reproduced such that it no longer functions as a trademark (if it ever did), on the basis that he never intended to use it as a trademark and that he is trying to register for collateral purposes (ie, to avoid evidential issues with copyright and to avoid having to file a ‘statement of use’ in the US).”


US comedian Jerry Seinfeld has defeated a lawsuit which alleged he had stolen the idea for a TV series. But the case was decided on basis that the statute of limitations must bar the claim - and not on any infringement or otherwise. Christian Charles, a former colleague claimed he had originally pitched the idea for "Comedians in Cars Getting Coffee" to Seinfeld in 2002 - a decade before it debuted. Manhattan District judge Alison Nathan said Charles had taken too long to sue, The statute of limitations appies after three years and Charles had waited for six years to file his lawsuit after Seinfeld rejected his copyright claim in 2012, the year the first series of the show aired.

Current chair of the House Judiciary Committee, Jerrold Nadler, has aired his thoughts on what might be the next challenges for legislating for music copyright in the USA. He 
joined National Music Publishers' Association president and CEO David Israelite for NYU Steinhardt's inaugural Ralph S. Peer Lecture, named after the music visionary who founded Peermusic in the 1920s. Prioritising the unity that led to the unanimous passage of the Music Modernization Act, Nadler opined "If you want real legislation, the different segments of the industry have to get their act together and speak with one voice," and admitting that most members of Congress aren't well-versed in music industry particulars. "Once they did that, we were able to pass legislation unanimously." Nadler then went to on talk about the fact that in the US there is no performing right for recorded music terrestrial AM/FM radio play - an almost unique position in the World adding "As terrestrial radio becomes relatively less important and streaming becomes more, the question is the extent to which broadcasters will see their interests as less opposed to performance rights. At some point, I do think we will get some [agreement], because the National Association of Broadcasters (NAB) and their people will see that their interests are less adversely affected than previously.

THE COPYKAT

The United States Copyright Office has chosen the Mechanical Licensing Collective (MLC) as the new entity tasked with licensing and administering rights under the Music Modernization Act. The MLC is seen as the 'establishment choice' in the music rights industry and  is backed by the National Music Publishers’ Association (NMPA), the Nashville Songwriters Association International (NSAI), and the Songwriters of North America (SONA). Music Business Worldwide reports that One of the group’s first tasks will be the negotiation of a budget with streaming services who, by law, must fund the collective. It will also include setting up administration and matching services and development of a user portal through which publishers and songwriters will be able to manage rights and royalties. If a funding agreement cannot be voluntarily determined, the MLC and the digital services will go before the Copyright Royalty Board which will set the MLC’s budget through an assessment proceeding.

GMA reports that Japan's Bureau of Immigration (BI) has arrested a fugitive who is said to be one on Japan's "most wanted" list - for copyright infringement. the BI press release says that Romi Hoshino alias Zakay Romi, a Japanese-German-Israeli fugitive, was arrested at the Ninoy Aquino International Airport Terminal 3. The BI said Hoshino, 28, manages "Manga-Mura," allegedly an illegal viewing website of Japanese comics or graphic novels, popularly known as manga, that operated from January 2016 to April 2018. n what is said to be the worst violation of Japan's copyright law, Manga-Mura's operation allegedly cost 320 billion yen or US$2.9 billion in damages, the Bureau reported, citing Japanese authorities.

BoingBoing reports that attorney John Steele, one of the Prenda law copyright 'trolls', has been  sentenced to 5 years in prison. Last month, Paul Hansmeier was sentenced to 14 years in prison and ordered to pay $1.5m in restitution for his role in the firm that BoingBong says "used a mix of entrapment, blackmail, identity theft, intimidation and fraud to extort millions from its victims by threatening to drag them into court for alleged infringement of copyright in eye-watering pornography". Steele cooperated with authorities, while Hansmeier fought the system for longer before entering a plea. Like Hansmeier, Steele has to pay $1.5m in restitution. Both men have also been disbarred. Hansmeier is appealing both the conviction and the sentence. In August 2015 a third Prenda law attorney, Paul Duffy, died. Along with Steele and  Hansmeier, Judicial sanctions had been upheld against him by the US Court of Appeals for the Seventh Circuit for engaging in “abusive litigation” and failing to pay attorney's fees in a porn-downloading lawsuit. In June that year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, willful obstruction of discovery in bad faith" in its case. 

And whilst on the fruity topic of trolls, The Electonic Frontiers Foundation has warned that the new Copyright Alternative in Small-Claims Enforcement (CASE) Act would "supercharge" a “copyright troll” industry. IPPro reports that  The CASE Act aims to make it easier for independent creators to better defend their IP from theft, and was proposed in May by Democrat congressman Hakeem Jeffries and Republican Doug Collins - and it has had wide support from the creative industries, in particular photographers and songwriters, musicians and artists. But the EFF argues that the bill would increase the number of trolls filing “many ‘small claims’ on as many internet users as possible in order to make money through the bill’s statutory damages provisions”. Under the bill, the US Copyright Office would gain a Copyright Claims Board, which would reduce costs and easing the burden for creators defending their intellectual property. The legislation would allow the Copyright Office to create a determination process for claims seeking up to $5,000 in damages which the EFF suggest is a "most trivial nod towards due process”. There again, many in the creative sector argue that the CASE Act "addresses a decades-old inequity in America's copyright system: a copyright system that all too often denies individual creators and small businesses a viable means of protecting their creative efforts. When it passes, the bill will give smaller individual creators the same kind of protections that larger scale creators have enjoyed for years."

YouTube has been updating its ways of handling copyright claims with changes that give the owners of the copyrighted content more control over their content - much to the horror of some YouTube users and creators who use other people's content in their work. - but to the delight of others. Digital Information World says "With the new policies, owners of any copyrighted content will now exactly mention the part in the video where the copyrighted material appears. With this feature, they can easily verify whether the claim is legitimate or not and to edit out the content if they don’t want any issues like losing revenue or having the video taken down. With this new update, the whole system will be more clear and very smooth to operate. Video creators will be able to see the part that’s been claimed, and YouTube will allow them to mute the audio during that portion or to easily replace the audio with any free-to-use song from YouTube’s library. If they chose any of these options, the copyright claim will automatically be removed." In February The Verge reported that an anonymous blackmailer has caught at least two YouTube creators in a scheme involving cash ransoms and "esoteric copyright laws". Both creators shared stories of how their channels were being threatened with a third copyright strike — and the possible termination of their channels — from an anonymous extortionist. The scammer offered to reverse the strikes in return for payment to a bitcoin wallet or to an adjoining Paypal account. YouTube now requires copyright owners to provide timestamps for all new manual Content ID claims.  and YouTube said in a blog post that it’s going to be vigilant about policing false claims: “We’ll be evaluating the accuracy of these timestamps. Copyright owners who repeatedly fail to provide accurate data will have their access to manual claiming revoked.”

Mr. Enjoy is Mr. Plaintiff (Was he the Boss in E*Trade’s Commercials as Well?)

Gianluca Vacchi is a social media influencer and DJ, who has more than 12 million followers on Instagram. He appeared last year in a commercial (do not watch while drinking) for the Bank of Georgia, Europe, which was so successful that “that many United States residents registered as clients of the bank” (because nothing gives you more confidence than a Santa Claus in an orange satin robe).

While Italian and living in Milan, Vacchi travels around the world to dance on roof tops, DJing, and generally having a good time. He chose Mr. Enjoy as his nickname. After all, as another Italian influencer, who also meddled a bit with music, urged us: “Godiam, la tazza e il cantico, La notte abbella e il riso. »

But Vacchi is not enjoying two of online investing company E*Trade’s commercials, [here is the other one] which were produced in mid-2017, where a middle-aged man, presented as “your boss,” is featured dancing with abandon (with who?)… with scantily dressed women.

Vacchi has just filed suit in the Southern District of New York against E*Trade, claiming “copyright infringement, as well as false endorsement and misappropriation of protectable character, protectable scenes, and image and persona of “the coolest man on Instagram.” Will he be successful? 

Grandpa was a social media influencer 

New York Right of Publicity

New York Civil Rights Law §§ 50 and 51 is the state of New York’s only right to privacy, which is not otherwise recognized by its common law. The statute makes it a misdemeanor to use the name, portrait or picture of a living person for advertising or trade purposes without prior written consent.

The E*Trade commercials are certainly “for advertising or trade purposes.” What is less certain, however, is whether the “name, portrait, or picture” of Vacchi has been used by Defendant.

Protecting the Persona?

“In fact, even a simple Google search for “dancing millionaire” inevitably shows Plaintiff in the top results” (Complaint).

Plaintiff claims a use of his image and his persona.

New York courts have recognized that using a "lookalike" of a well-known personality for commercial purposes is a violation of New York Civil Rights Law §§ 50 and 51. In this case, a lookalike of Jacqueline Kennedy Onassis has been featured in a Dior ad. The court noted that “Plaintiff's name appears nowhere in the advertisement. Nevertheless, the picture of a well-known personality, used in an ad and instantly recognizable, will still serve as a badge of approval for that commercial product.” In our case, Vacchi’s name is not used in the commercial either.

Lindsay Lohan was not able to convince the courts last year either that Take-Two Interactive Software, the developer and distributor of the Grand Theft Auto V video game, had used her likeness and persona to create the character Lacey Jonas (see here and here). But the case was about a video game, not an advertisement, and the court in Onassis v. Dior distinguished artistic from commercial endeavors.

In our case, Plaintiff is a middle aged man, with trimmed grey beard and hair, a toned and tattooed body, and a propensity to take pictures of himself while bare chested.  This is his image, his likeness, his resemblance.

Plaintiff claims that Defendant used a “clone of Vacchi, dancing with women on a boat while DJ’ing: conduct that based upon numerous YouTube videos, photographs, and music videos created and published by Vacchi, has become synonymous with the image and persona,” and describes “the E*Trade Character [as] a heavily-tattooed male with bare torso dancing with a beautiful female companion.”

Vacchi self-described persona is “the coolest man on Instagram,” and he very well may be if cool is defined by sunsets seen from high rise balconies, partying, the beaches, dancing around rooftop swimming pools, and leopard cushions. No coupon clipping for him.

So Plaintiff’s persona could be: man + middle-aged + toned and tattooed body + glasses + dancing + trim gray beard + exotic locales + women in teeny weeny bathing suits. This could also describe an aged James Bond after one too many stirred Martinis led him to the tattoo parlor, or Queequeg if Moby-Dick had shed some blubber and got a bikini wax.

The E*Trade character is a middle-aged  man, with glasses, bare chested, with tattoos, dancing with young women in bathing suits, on a yacht. He wears suspenders, as does Plaintiff sometimes.

It could be argued, as in the Onassis v. Dior case, that “plaintiff's identity was impermissibly misappropriated for the purposes of trade and advertising, and that it makes no difference if the picture used to establish that identity was genuine or counterfeit.” Plaintiff would still need to prove that Defendant used his image. Or maybe it meant to portray the Most Interesting Man in the World.

Copyright Infringement

Plaintiff also claims that Defendant’s videos are infringing derivative works  and that “E*Trade’s commercial is simply a rip-off of a number of videos created and published by Vacchi over the years.”

Plaintiff regularly posts short videos on his Instagram account, featuring him and other persons in exotic locales. He is seen doing less than mundane activities, such as tattooing a female doll (cringe alert on this one), or pedaling on a stationary bike in his private jet. 

Plaintiff did not obtain a registration for these videos before filing suit, because “Plaintiff is a foreign citizen and did not register all of his videos and photos in the United States.“

This is too bad, as the U.S. Supreme Court held last month, in Fourth Estate Public Benefit Corp. v. Wallstreet.com LLC, that a plaintiff claiming copyright infringement must first register the work with the U.S. copyright Office before filing suit. 

Plaintiff’s Instagram videos are probably not original enough to be protected by copyright anyway. The Copyright Office appears to be less and less inclined these days [see here and here]  to register such works, because they are not original enough to be worthy of copyright protection.

The videos feature cliché images of sunsets on the beach, descending the steps of a private jet, big designer bags, having a manservant in livery, leopard cushions, party, party, party, and young women in bikinis. They look sometimes like a Michael Kors ad. Whether they are to be taken with a grain of salt is irrelevant, as they are unprotectable scènes à faire of a “Let’s live in a Jennifer Lopez video” lifestyle (I love that song).

The case will probably settle (alas, may I add, rather selfishly).

THE COPYKAT

The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers,  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label - but many said at the time that a careful look at the judgment, decided on a technicality, was actually a win in the battle against piracy. The 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders - an important precedent. Grande had been accused of operating a similarly ineffective system for dealing with infringers and infringement, and the RIAA pursued the ISP arguing that Grande should be liable for its users' infringement. Now a US Court has agreed with that position in a summary judgement that quotes BMG v Cox and affirms that those seeking safe harbour protection in the US must "reasonably implement" a policy for disconnecting repeat infringers or they will lose safe harbour protection in circumstances where the "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion". The new decision noted the December Magistrate Judge's opinion in this case, which concluded that the "undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice". The court agreed, saying Grande's systems were even worse that Cox's:  "Grande thus did even less than Cox to 'reasonably implement' the kind of policy required for the protections of ... safe harbour ..... if lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour's protections, the complete nonexistence of such procedures surely must do likewise"

A federal appeals court has partially sided with real estate giant Zillow in important decision involving the long-running copyright battle with photography company VHT over how property photos can be used online. The 9th U.S. Circuit Court of Appeals ruled that Zillow did not willfully infringe on copyrights for 28,000 real estate photos for its home improvement section, now known as Zillow Porchlight in a turnaround in the case from when Zillow lost a jury trial in 2017 and was ordered to pay $8.3 million in damages to VHT. U.S. District Judge James L. Robart had already reviewed the Seattle jury's decision and had ruled that “the jury had no rational basis on which to conclude” that 22,109 of those photos violated VHT’s copyright and reduced the damages award down to a little over $4 million. However Judge Robart upheld a piece of the original verdict that held Zillow liable for willfully infringing on 2,700 photographs, a key victory for VHT and the basis for keeping the damages at around $4 million: the appeals court also sided with VHT when it maintained the prior ruling that several thousand tagged, searchable photos displayed on Zillow did not constitute a “fair use” but criticised VHT's methods of dealing with the infringements before filing their suit.   “We are pleased with the results of this appeal,” Zillow said in a statement. “We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms.” One final consideration is whether the infringing use is as a 'compilation' - so one infringement - or multiple infringements of each image used with the appellate court saying:  “If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.

A real peloton (Ben Challis, (C) 2018)

Have you seen the Peloton advert? A 'committed' female cyclist called Rachael pedalling at her home, alone, on a fixed bike being encouraged along to greatness and success by a video simulator. Yeah, great job, you smashed it. Well now a group of music publishers have brought a legal action against the streaming-exercise-class company Peloton for using music from artists like Katy Perry and Drake in thousands of exercise videos without the proper permissions - and are seeking more than $150 million in damages alleging that the uses lack the necessary synchronisation licences.  “Unfortunately, instead of recognizing the integral role of songwriters to its company, Peloton has built its business by using their work without their permission or fair compensation for years,” said David Israelite, president and CEO of the National Music Publishers’ Association adding “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.”

It seems there is an ever growing list of comedians, artists and other creators who want to take a pop at @FuckJerry and owner Elliot Tebele , the wildly popular Instagram meme account that does seem to be very good at finding material for its users, but doesn't seem to be very good at crediting or compensating people when they use their works. First in line with a complaint about alleged violations is a complaint filed in the Southern District of New York on behalf of Nigerian-based Twitter user and Instagrammer Olorunfemi Coker, who has 133,000 followers on Twitter and over 62,000 followers on Instagram. The lawsuit alleges that FuckJerry posted a screenshot of a January tweet by Coker to its Instagram account without Coker’s permission and used it to advertise its JAJA tequila brand. (The post no longer appears to be on the FuckJerry Instagram page.) According to Coker’s lawyer, this is the first case of its kind brought against FuckJerry. But it's not as simple as it seems - jokes are a thorny issue when it comes to proving appropriation - especially when the 'idea' of a joke has been borrowed - but expressed in a new way. This one could be interesting! Jerry Media took some flak for its role in promoting the disastrous Fyre Festival and, after controversy over how the @fuckjerry account was crediting third party works, Tebele said that the account would no longer post images if the original creator couldn’t be identified saying: “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work ..... [W]e have also updated our policies to make sure we are responsive to creators whenever they have reached out to us about posts.”

The EU Parliament will vote next Tuesday (March 26th) on whether to endorse an overhaul of the EU’s two-decade old copyright rules as Google and internet activists stepped up their criticism of a requirement to install copyright filters. Websites and businesses across Europe are protesting controversial changes to online copyright being introduced by the European Union. Ahead of a final vote  a number of European Wikipedia sites are going dark for a day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown a #saveyourinternet message.

Marc Jacobs looks to dismiss Nirvana case

Nirvana T-shirt (EMP)

In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ' Redux Grunge' grunge-inspired collection and seemingly acknowledges the 'inspiration' for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis.  At the time of those reports The t-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers.

Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that - while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob's also notes that its products don't include the text  "flower-sniffin, kitty-pettin, baby-kissin corporate rock whores" which was on the back of the band's original shirts. And where the Nirvana t-shirts bore the band's name, Jacobs' say 'Heaven', albeit in a very similar font.

Marc Jacobs T-shirt

"[The original image filed with the US Copyright Office] includes the word 'Nirvana'. The accused products do not. The [registration] includes the 'flower sniffin' writing. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs".

So the Marc Jacobs defence appears to be that whilst their T-shirts are 'Nirvana-esque' - they are not copies: Inspiration, not appropriation. The designer’s motion for dismissal acknowledges the designs as “inspired by vintage Nirvana concert T-shirts from the 1990s,” but also contests that he “reinterpreted the design to incorporate [a Marc Jacobs] branding element into an otherwise commonplace image”.

"The only similarity between what is covered by the [registration] and the artwork contained on the accused products .....  is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out". 

Lawyers for Jacobs also stress that, not only was it Cobain who actually created the original image, but that his widow and daughter approved of the fashion firm's creation. It says: "As friends of the brand, Ms [Courtney] Love and Ms [Frances Bean] Cobain helped celebrate the release of the collection".

https://hypebeast.com/2019/3/nirvana-marc-jacobs-lawsuit-smiley-face

Lets Get It On...Trial - Another Copyright Infringement Case for Ed Sheeran

Hayleigh Bosher writing on the IPKat

Readers may remember a previous post about an ongoing case in the UK against Ed Sheeran, in relation to his is song "Shape of You". Over the pond, Sheeran is accused of copyright infringement of Marvin Gaye's "Let's Get It On" in his song "Thinking Out Loud".

There are two on-going cases relating to "Let's Get It On" and "Thinking Out Loud", before Judge Louis L Stanton in the New York Southern District Court. Neither of the cases are brought by the Gaye Estate. The song was recorded by Marvin Gaye, but was written by Ed Townsend who owned 2/3rd of the royalties for the song when he died in 2003. 

The first is between Structured Asset Sales (SAS) and Sheeran, his co-writer Amy Wadge and their record labels. SAS is a beneficial owner of one-third of all of the copyright rights of Townsend in all of his catalogue of works, including “Let’s Get it On.”

The second case is brought by Kathryn Townsend Griffin (biological daughter of Townsend, adopted as a child by other parents), and the Estate of Townsend. The latest judgement in this case was filed yesterday, here's what happened: 

Background

Townsend filled a complaint for copyright infringement in June 2018. In response Sheeran denied copying and applied for a Summary Judgement to dismiss the case on the grounds that 

1) the scope of the copyright protection is limited to the sheet music as deposited; 2) the songs are not substantially similar; 3) that any alleged similarities are not protected as commonplace elements; 4) that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. 

1) The Scope of Copyright Protection 

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In support of the application for copyright infringement, Townsend submitted the sheet music for LGO. Sheeran argued that the LGO deposit defines the scope of protection, pointing to a previous case (Wolfe v. Zeppelin 905 F . 3d 1116, 9th C 2018) that held the deposit of the plaintiffs work, rather than the sound recording, defined the scope of protection, since the purpose of the deposit is to identify the work in which copyright is claimed.

Both parties agreed that the LGO deposit copy includes the composition's key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure, but Townsend argued that the composition is embodied on the Gaye recording.

This is important because, as the court noted, hearing the percussion and bass increases the perception of similarity between the works. At this stage, the court left this question open.

2) Are the Songs Substantially Similar? 

Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff's work; and that the copying is of a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's. The test for substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.

In doing so the court considers, whether an average lay observer would recognise the alleged copy as having been appropriated from the copyrighted work. However, where a work has both protectible and unprotectible elements, the analysis must be more discerning, and involves extracting the unprotectible elements from the consideration. The Court then only asks whether the protectible elements, standing alone, are substantially similar.

In the present case, both parties submitted musicologist reports and agreed to some similarities between the songs such as the I - iii - IV-V harmonic progression, harmonic rhythm with anticipated

Ed Sheerans in the 
music video for TOL

second and fourth chords, melody , bass - line , and percussion. Parties dispute the similarity of the vocal melody, harmonic rhythm, harmony, bass-line and percussion. There is no claim of similarities between the lyrics or song structures.

The Judge noted that the key, tempo, meter, and genre of the two compositions are similar , but are unprotectable elements. Sheeran pointed to other elements - song structure , lyrics , and tone - to highlight the difference in "total concept and feel" between the works; submitting that TOL is characterised by somber, melancholic tones, about long-lasting romantic love, whereas LGO is a "sexual anthem that radiates positive emotions and encourages the listener to get it on".

In light of which, the judge held that the question whether TOL is substantially similar LGO should be determined by trial rather than summarily.

3) Is it Infringement or Are The Parts Taken Common Place?

Sheeran argues that the similar elements between the songs are not protected as commonplace elements. The parties dispute whether the basic I - iii-IV- V chord progression used in LGO is common place, or was commonplace prior to LGO. Townsend conceded that Sheeran's expert identified at least thirteen songs that predate LGO that use the same chord progression, and that it appears in at least two guitar method books. However, they noted that only a dozen or so were identified that contained this chord progression prior to LGO. 

Who you calling common place?
Photo: Isola greca

The parties also dispute whether the harmonic rhythm of that four-chord progression - the second and fourth chords being "anticipated" or placed ahead of the beat - is protectable. Sheeran says its a common place technique, Townsend claims its distinctive.

Both disagreements precludes summary judgment since the question of whether the elements warrant copyright protection is a factual question to be determined at trial.

4) Does the Plaintiff Have Standing?

Sheeran argued that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. However, the judge agreed followed the decision of the Superior Court of California which previously ordered that Kathryn was an intestate heir of Townsend

and thus entitled to 30% of the royalties from his music.

Lets Get It On Trial, Summary Judgement Denied

The summary judgement was denied because the judge said that the questions relating to the these issues needed to be decided by trial. This is common since the issue of substantial similarity is frequently a fact issue for jury resolution in the US.

A jury might side with either view; it may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between LGO and TOL. However, a jury could find several similarities between the two songs and therefore find Sheeran to be infringing.  

The case is very similar to another that the Gaye family bought against Robin Thicke and Pharrell Williams, where they succeeded in claiming "Blurred Lines" copied "Got To Give It Up". As a result, the Gaye family received a pay out of $5 Million and 50% of future royalties. So if Sheeran looses he could be face the same level of damages.