This might be an interesting example for moral rights in the French droit d´auteur system. Even if the band has been paid by the UMP via the author´s collective SACEM, they might still disagree with being associated with a conservative political party.
http://www.guardian.co.uk/music/2009/feb/24/nicolas-sarkozy-party-compensates-mgmt
Tuesday, February 24, 2009
Tuesday, February 17, 2009
Trade Dress/Trade Secrets in Restaurants - NYC lawsuit
http://www.nytimes.com/2007/06/27/nyregion/27pearl.html?pagewanted=2&_r=1&ref=dining
I confess I haven't checked to see how it came out, but this article about a lawsuit wherein a restaurant owner charged a former employee-turned-competitor with copying her restaurant’s concept (and a key dish) ties into the discussion in today's class.
I confess I haven't checked to see how it came out, but this article about a lawsuit wherein a restaurant owner charged a former employee-turned-competitor with copying her restaurant’s concept (and a key dish) ties into the discussion in today's class.
Thursday, February 12, 2009
Remix Culture
"Artists have gotten no more money, businesses have not gotten more profit, and our kids have been turned into criminals."
This quotation is sums up the core of Lessig's problem with US Copyright law in its current form. The link leads to a review of his latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. A relevant example of the disconnect between the goals and outcomes of copyright law can be found in the experience of Stephanie Lenz. In 2007, Universal Records sued her for uploading a video to YouTube of her toddler dancing to a Prince song in the background. Mr. Lessig points out that it is inconceivable that people would use this YouTube video in lieu of purchasing a Prince album.
While a good point, it misses an important issue - copyright is not just about money, but about controlling one's own artistic creation. Perhaps Prince has a deep-seated aversion to toddlers and opposes the use of his music in such a fashion. While that may sound silly to most, it is Prince's song and Prince should control how the song is broadcast. Anyways, a thoughtful book by a thoughtful man.
This quotation is sums up the core of Lessig's problem with US Copyright law in its current form. The link leads to a review of his latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. A relevant example of the disconnect between the goals and outcomes of copyright law can be found in the experience of Stephanie Lenz. In 2007, Universal Records sued her for uploading a video to YouTube of her toddler dancing to a Prince song in the background. Mr. Lessig points out that it is inconceivable that people would use this YouTube video in lieu of purchasing a Prince album.
While a good point, it misses an important issue - copyright is not just about money, but about controlling one's own artistic creation. Perhaps Prince has a deep-seated aversion to toddlers and opposes the use of his music in such a fashion. While that may sound silly to most, it is Prince's song and Prince should control how the song is broadcast. Anyways, a thoughtful book by a thoughtful man.
Wednesday, February 11, 2009
E-Book reader copyright issue
This from the WSJ: The text-to-speech (i.e. read aloud) experimental feature of Amazon's Kindle 2 bookreader is running into trouble with the Author's Guild (of Google Books copyright case fame). Why? The read-aloud feature is argued to be an audio right distinct from the literary right under copyright law.
More here: http://online.wsj.com/article/SB123419309890963869.html
-Ben
More here: http://online.wsj.com/article/SB123419309890963869.html
-Ben
Tuesday, February 10, 2009
Monday, February 9, 2009
Is a car in a movie copyrightable subject matter?
For Herbie the Love Bug, the answer is yes! For “Eleanor” the Ford Mustang from Gone in 60 Seconds, maybe....
The 9th Circuit recently discussed copyright protection for characters in Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008). In this case, the owner of rights to the original 1974 film filed suit against famed Mustang manufacturer, Caroll Shelby, for merchandising activities resulting from Disney’s 2000 remake with Nicolas Cage and a pre-Brangelina Jolie.
The “original Eleanor” was a 1971 Fastback Ford Mustang, while “remake Eleanor” appeared as a 1967 Shelby GT-500. While the primary issue before the was whether the licensing agreement for the remake included merchandising rights, the court was presented with a secondary question of whether or not a car is a copyrightable character.
Applying the test of whether the character is the story being told, the Halicki court suggested copyright protection may be available for Eleanor. In particular, the court noted that in both the 1974 and 2000 remakes, the main character referred to his routine difficulties in stealing Eleanor the Mustang. Furthermore, the court highlighted the similarities of Eleanor to copyrightable comic book characters, where features are “consistent, and widely identifiable”. Speaking more to Eleanor’s penchant for avoiding theft, cosmetic differences between the two automotive models appeared to be of less consequence. The court remanded to the district court, emphasizing examination of “physical and conceptual qualities [and]… unique elements of expression”.
In summary, Herbie the Love Bug is the story being told and certainly copyrightables, while Eleanor may just barely qualify.
The Unfortunate Fate of Copyright Blogs, and What That Tells Us About the State of Copyright Law
A couple of months ago Keith Henning, a prominent copyright blogger, (http://copywrite.org/2008/10/14/blog-ending/) recently quit blogging. This comes close on the heels of what was probably the most prominent copyright blogger, Bill Patry, also quitting his blog (http://williampatry.blogspot.com/2008/08/end-of-blog.html). Bill is lead copyright counsel for Google, and his ideas on the field of copyright reflected the progressive stance that is part of Google's business culture.
Both of these bloggers cited similar reasons for ceasing their blogging activities. These included the benign aspects of limited time and communication from weirdoes, and the more troubling aspect of the overall "depressing" state of copyright law. The trends in copyright law, as both bloggers attest, seem to be almost universally negative. We discussed the influence of major corporations, namely Disney, on the Sonny Bono Copyright Term Extension Act in class. And if the opinions of these bloggers are to be believed, that influence is ubiquitous in copyright legal reforms. Mr. Henning cited the current example of the Pro-IP Bill, saying that "there is nothing in [it] to benefit actual people or even creators, only things to put the screws to anyone unlucky enough to get to in the way of a record label or large movie house." Based on the limited information that I have and my natural cynicism, I'm inclined to believe him.
The theme of corporate influence over copyright law is reinforced by Henning's fourth reason for quitting, which is how incredibly depressing it is to interact with victims of the RIAA's litigation campaign that contact him. The RIAA suits have been riddled with legal, factual and constitutional errors, and yet they have managed to extract over $300 million from thousands of defendants, many of whom are innocent, while only conducting a few trials that have actually made it to court. It is difficult to conceive of how such a Machiavellian scheme could succeed without the tremendous resources and influence of a multi-billion dollar industry.
Copyright law is fun. It has probably been the most interesting field of law that I have studies thus far, and my interest in it extends beyond classroom. But I share the opinions of the recently retired copyright bloggers that it is being destroyed by the influence of wealthy organizations. Perhaps that is part of what makes it so interesting, to see what the dirty old RIAA is up to next. It helps to have a definite villain in any good story, and the RIAA assumes that role in an almost vaudevillian fashion.
Despite my dismay with the direction of copyright law, I will continue to monitor it in the future, and hopefully will get to practice it someday. I will certainly be watching the first web-based simulcast of Harvard Professor Charles Nesson's oral argument against the RIAA. It is currently scheduled to be broadcast on Feb. 24 on Harvard's Law School website. The RIAA has opposed the broadcast, to which amici such as the AP, Hearst, PBS, NPR and the EFF have responded, so the date and time have not yet been finally determined. But they will soon and the information will be on the internet if you are interested. I'll bring the popcorn.
Both of these bloggers cited similar reasons for ceasing their blogging activities. These included the benign aspects of limited time and communication from weirdoes, and the more troubling aspect of the overall "depressing" state of copyright law. The trends in copyright law, as both bloggers attest, seem to be almost universally negative. We discussed the influence of major corporations, namely Disney, on the Sonny Bono Copyright Term Extension Act in class. And if the opinions of these bloggers are to be believed, that influence is ubiquitous in copyright legal reforms. Mr. Henning cited the current example of the Pro-IP Bill, saying that "there is nothing in [it] to benefit actual people or even creators, only things to put the screws to anyone unlucky enough to get to in the way of a record label or large movie house." Based on the limited information that I have and my natural cynicism, I'm inclined to believe him.
The theme of corporate influence over copyright law is reinforced by Henning's fourth reason for quitting, which is how incredibly depressing it is to interact with victims of the RIAA's litigation campaign that contact him. The RIAA suits have been riddled with legal, factual and constitutional errors, and yet they have managed to extract over $300 million from thousands of defendants, many of whom are innocent, while only conducting a few trials that have actually made it to court. It is difficult to conceive of how such a Machiavellian scheme could succeed without the tremendous resources and influence of a multi-billion dollar industry.
Copyright law is fun. It has probably been the most interesting field of law that I have studies thus far, and my interest in it extends beyond classroom. But I share the opinions of the recently retired copyright bloggers that it is being destroyed by the influence of wealthy organizations. Perhaps that is part of what makes it so interesting, to see what the dirty old RIAA is up to next. It helps to have a definite villain in any good story, and the RIAA assumes that role in an almost vaudevillian fashion.
Despite my dismay with the direction of copyright law, I will continue to monitor it in the future, and hopefully will get to practice it someday. I will certainly be watching the first web-based simulcast of Harvard Professor Charles Nesson's oral argument against the RIAA. It is currently scheduled to be broadcast on Feb. 24 on Harvard's Law School website. The RIAA has opposed the broadcast, to which amici such as the AP, Hearst, PBS, NPR and the EFF have responded, so the date and time have not yet been finally determined. But they will soon and the information will be on the internet if you are interested. I'll bring the popcorn.
Sunday, February 8, 2009
Personality Rights in Washington State
For those interested in thinking about the interactions between state property law and federal copyright law, I provide below some background on the 1998 Washington Personality Rights Act, which is taken from the 2008 House Bill Report for HB 2727 (which clarified some aspects of the original act). If you are interested in reading the statutes, they can be found at Chapter 63.60 RCW.
In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.
The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.
Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.
There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.
In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.
The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.
Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.
There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.
Saturday, February 7, 2009
Cablevision DVR Case
Recently, the U.S. Court of Appeals in N.Y. issued a decision lifting an injunction that prohibited Cablevision from offering its customers space on its servers to store television for later viewing. The Supreme Court is considering whether to grant certiori in the case and, in January, the asked the Obama administration if it wanted to weigh in on the matter. See the article here.
I thought this was interesting as we spoke briefly in class on the matter of TiVo and the time-shifting aspects of recording programs (a la Sony). I think this case also shows some clear boundaries outlining some prominent stakeholders in a copyright case. Movie studios and film networks are teaming up to argue that the Supreme Court should reverse the COA decision. On the other side, Cable companies are hoping that the decision will stand as it would save them millions by not having to buy and install DVR boxes in individual homes.
"Copyright being used to stifle creativity, rather than promote it"
The University of the South owns the copyright of Tennessee Williams’ plays such as “A Street Car Named Desire.” The university is threatening to sue a one-man act entitled “Blanche Survives Katrina in a FEMA Trailer Named Desire.” While the university alleges that this one-man act is an infringement “on the university’s valuable intellectual property rights,” the author of this article maintains that the act is a transformative use. In addition, the author of this article emphasizes that the act’s author and actor has a strong fair use defense since the act is a “parody of both current events and the original play.” The university, on the other hand, maintains that the fair use defense will not work since the parody is only directed at current events.
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Thursday, February 5, 2009
Lawrence Lessig on NPR
Professor Lessig will be a guest on NPR on Friday, 02/06/09 at 1 pm. He will be discussing his recent article in the Wall Street Journal and his views on the present state of copyright law. The local NPR station where he will be a guest is KUOW 94.9 FM
Wednesday, February 4, 2009
A Love Affair With the Cell Phone Novel
I was browsing through an old New Yorker and I found a story on the advent and rise of the cell phone novel in Japan, by Dana Goodyear.
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
Obama Hope Poster a Copyright Infringement...or Fair Use?
We've seen the red, white, and blue image of Barack Obama, with the word "HOPE" EVERYWHERE in the past year. It's been used on posters, t-shirts, buttons, even cupcakes. This iconic image probably now rivals those of Che Guevara and Mao Zedong.
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
iTunes, DRMs and the first sale docrine (?)
I am wondering if anyone has any thoughts on something I've been thinking about. In class yesterday, Professor Laster, in his summary, said that the first sale doctrine exhausts the copyright holder's right to control the distribution. As I understand it, that means, for example, that if I buy a music CD, I can lend it to my friend. I know Apple recently announced it would stop selling music encumbered by digital rights management restrictions - seems to me as a result of consumer power - but are DRM encumbrances legal? Was apple allowed to do this in the first place? Ostensibly, when I buy a song on iTunes, I'm not just buying a license to use the song, am I? Or maybe I am? I thought I was buying a copy of the song. Does it have to do with a difference in medium, ie the tangible medium problem? Am I missing something? A statute? At any rate, it seems like in this case the market took care of the situation and Apple is now getting rid of its DRMs. Victory.
Tuesday, February 3, 2009
Monday, February 2, 2009
14th Annual Intellectual Property Institute
On March 12, 2009, the WSBA is holding a seminar dealing with a variety of intellectual property issues that we have covered both last quarter and this quarter. Some of the segments inlcude a session on the DMCA and a year in review of copyright cases, among other topics in Patent law, Copyrights, and Trademarks. Professor O'Connor will be one of the lecturers as well. The cost of the seminar is $270.00 and it counts for 6.O CLE credits (for anyone who is already admitted to practice in Washington and needs CLE credits). The only down side is that it appears that the seminar meets during our regular class time, so anyone who attends will have to miss class (unless you just attend certain sessions and not the whole thing). More information is available at the WSBA website under the "CLE" link.
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