Posts In "Copyright"

Copyright




Federal Judge Declares Sherlock Holmes Characters in Public Domain. Sort of.

Federal Judge Declares Sherlock Holmes Characters in Public Domain.  Sort of.

 

Comedian Dmitri Martin has a great joke about the expression “sort of.”  Although normally a fairly meaningless expression, saying “sort of” after certain things suddenly becomes very important.  Such as after the phrase “I love you,” or “You’re going to live,” or “It’s a boy.”  I immediately thought of this joke after reading a recent order issued by a federal court in Illinois.  The order declared that Sherlock Holmes, Dr. Watson, 221B Baker Street, the evil Professor Moriarty, and other elements of Sir Arthur Conan Doyle’s beloved works have fallen into the public domain.

 

Sort of.

Continue reading the full story . . . »

TwitterFacebookLinkedInGoogle+Share

Requiem for a Ridiculous Lawsuit

Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission.  Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Companythreatening legal action against an Italian film distributor over a film in which Jesus drinks a can of Coke in the desert; Louis Vuitton suing Warner Brothersover the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Records over the song “Barbie Girl.”  As if on cue, another such example has just arrived.

This month, a judge ruled on a lawsuit brought by Faulkner Literary Rights, LLC against Sony Pictures, Inc. for the studio’s use of a single line from the book Requiem for a Nun (written by that Nobel Prize winning William Faulkner guy) that was paraphrased and attributed to the author in the movie Midnight in Paris (directed by that controversial Woody Allen guy):

Original quote from Requiem for a Nun

Paraphrased quote in Midnight in Paris

“The past is never dead.  It’s not even past.” “The past is not dead.  Actually it’s not even past.  You know who said that?  Faulkner, and he was right.  I met him too.  I ran into him at a dinner party.”

  Continue reading the full story . . . »


Happy Birthday…You’re Being Sued!

Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television?  Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life.  Nevertheless, this falsification of reality happens all the time.  My favorite example was when the crew of the Enterprise sang “For He’s a Jolly Good Fellow” to Worf on his birthday (in Klingon, naturally).  At the end of the song, Worf observed, “that is not a Klingon song.”  Worf’s observation is ironic, of course, because even humans don’t really sing “For He’s a Jolly Good Fellow” to each other on their birthdays.  (Well, maybe the humans who speak Klingon do….)

The reason for this falsification of reality is two-fold.  First, “For He’s a Jolly Good Fellow” is clearly in the public domain (which means you can use it for klingonfree).  Second, Warner/Chappell Music claims to own the copyright to the song “Happy Birthday to You” and charges $1,500 for a “synch license” whenever someone wants to use it on screen.

And until now, no one has ever formally challenged Warner/Chappell’s copyright to the Happy Birthday song.

Clearance Culture

Helping to falsify reality in films and television to avoid the risk of litigation is actually a full time job for some people in Hollywood.  Sadly, we live in a clearance culture, where every scene must be analyzed from top to bottom for potential trademarked or copyrighted works that could give rise to infringement claims.  If third-party intellectual property appears in a film or television show, there is often a license involved.  While at first blush this practice of obtaining a license for anything and everything may seem as crazy as kittens fighting each other with lightsabers, creators actually have a very good reason to be cautious.

Examples of film and television producers being sued for using other peoples’ creations are not difficult to find.  Some notable examples include:  Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of coke in the desert;Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Recordsover the song “Barbie Girl.”  In one particularly famous case, an artist named Faith Ringgold, who created a distinctive silk screen on a quilt, successfully sued BET and HBO over a film that showed her art in the background for less than 30 seconds of total air time.

In the case of the recent Happy Birthday lawsuit, however, the issue is not about whether the work can or cannot be used without permission.  Instead, the issue is whether the song is even entitled to copyright protection at all.

The Happy Birthday Lawsuit

Earlier this month, a documentary film company called “Good Morning to You Productions Corp.” filed a lawsuit in New York federal court seeking, among other things, a declaration that the song “Happy Birthday to You” is in the public domain.  The documentary film company is making a documentary about the Happy Birthday song which apparently started out as a song called “Good Morning to You” back in 1893.  The company claims that it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

According to the documentary filmmakers, people started using the song “Good Morning to You” with the words “Happy Birthday to You” as early as 1901.  The filmmakers also claim that the lyrics to Happy Birthday to You were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church and that a copyright application was filed the following year.  These facts, if true, prove two things.  First, you can apparently make a documentary film about any subject these days regardless of how esoteric the topic might be.  And second, the Happy Birthday song may actually have fallen into the public domain.

The legal arguments involved in this case will involve the vagaries of pre-1976 Copyright Act law that, for most non-IP lawyers, would give Ambien a run for its money.  Of greater general interest, though, is the broader hypothetical question about whether singing Happy Birthday in a film or television show ordinarily can be done without permission.  In other words, is this lawsuit even necessary?

Happy Birthday Without Permission

Analyzing copyright issues can be complicated because there are always numerous points to consider.  For example, you might wonder why Happy Birthday is entitled to protection at all if people use it in a functional way (i.e., to wish someone a happy birthday).  The sculptural design of a “Ribbon®” bike rack, for example, is not copyrightable because it is a “useful article.”  There is a related concept in trademark law that applies to trademarks that have become so common that they now just refer to a generic product type.  Words like “Aspirin,” “Zipper,” “Heroin,” “Escalator,” “Yo-yo,” and “Thermos,” for example, all used to be entitled to trademark protection but have now become “genericized” and can be used by anyone.

However, the “useful article” doctrine in copyright law does not apply to music.  This means you cannot simply contend that using the Happy Birthday song is permissible without a license just because the song serves a useful function.

What’s left is a “fair use” defense.  As we have blogged about before, fair use is extremely context specific and must be analyzed on a case-by-case basis.  In any particular case, you would have to examine numerous factors, including how the song was used, i.e., whether the use was “transformative,” and how much of the song was used.  For example, a four or five second clip that shows a family member delivering a cake to another family member while singing Happy Birthday could be viewed quite differently than say a 30 second clip of a choir singing the entire song outside the context of celebrating someone’s birthday.  (Although query why anyone would ever sing Happy Birthday outside the context of celebrating someone’s birthday….)

Ultimately, while one may conclude that singing Happy Birthday in a film or television show might constitute a fair use under particular circumstances, there would always be the threat of a lawsuit from the rights holder.

On the other hand, after this new lawsuit is over, there may not be a rights holder to worry about.


This Is Our Super Bowl Blog Post. Now Come and Get Us, NFL!

[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we’re bringing back one of our most-read, and most personally-favored posts.  Enjoy your SUPER BOWL PARTY, everyone.]

Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens.  (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline.  Well here’s a little-known wrinkle about it.)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

biggame

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, folks: I can.

Continue reading the full story . . . »


“Where Are They Now”: Law Law Land Edition

This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.)

Viacom v. YouTube:  It’s the case that just won’t die.  When we last left Viacom — which led a cadre of content owners in a billion-dollar holy war against YouTube for its “Wild West” early years of unfiltered, infringement-heavy content — the company was appealing a federal court’s dismissal of its copyright infringement claims against YouTube.  And sure enough, in April 2012, the Second Circuit revived the case, holding that while the Digital Millennium Copyright Act (or DMCA) generally shielded YouTube from liability for its users’ acts of infringement, Viacom could continue to pursue the site based on allegations that YouTube willfully turned a blind eye to, or exerted “substantial influence” on, its users’ infringing activities.

Surprisingly, internet rights groups were largely pleased with the decision, which declined to create an affirmative duty for companies like YouTube to actively monitor their users’ submissions for infringing content.  Meanwhile, the decision has become the centerpiece for other, lower-profile litigations surrounding related issues.  For instance, a group of major record labels who have been locked in litigation against video service Vimeo for three years just moved to eliminate Vimeo’s DMCA defense based on the principles set out in the Viacom/YouTube decision.

Marathon v. Fox & SpillaneTalent manager Rick Siegel’s years-long crusade against California’s Talent Agencies Act — which notoriously allows clients to void contracts with, and even reclaim previously-paid commissions from, managers who “procure employment” for them without a state-issued agency license — seems to have gone nowhere in the year since we last wrote about it.  As of the end of 2011, Siegel’s long battle with his former client, actress Rosa Blasi, had morphed into a lawsuit by Siegel against his former attorneys, by which Siegel hoped (with the support of the talent management community) to use a procedural end-around to directly assault California’s law.

But while Siegel’s efforts may have failed, the talent managers of California have not gone gentle into that good night.  In November 2012, the National Conference of Personal Managers (of which Siegel is a member, though his direct involvement with its recent efforts is unclear) brought a direct constitutional challenge against the Talent Agencies Act in federal court — one where they get to challenge the law in the abstract, without worrying about a sympathetic celebrity litigant clouding the minds of judge and jury.  It may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on involuntary servitude, you have to raise your eyebrows a little — but it’s a clear sign that the ongoing conflict among agents, managers, and state labor regulators will continue to rage for months and years to come.

Scorpio Music v. Willis:  My god, can it be?  Yes, I think it is — that rare and beautiful lawsuit that actually results in somebody winning and somebody losing (rather than everyone settling and walking away)!

This case involved the efforts of Victor Willis, the original “Police Officer”/lead singer of the Village People, to reclaim his share of the copyright in the iconic “YMCA” (among several other Village people hits) from music publishers Scorpio Music and Can’t Stop Productions.  And you know what?  He did.  Willis’s lawsuit was the first major test case for the “copyright termination” provisions of the 1976 Copyright Act that are applicable to post-January 1, 1978 works, and widely considered the first major copyright termination case involving a songwriter.  The decision addressed many issues which will be vital to such songwriter termination lawsuits, including the right of a songwriter to terminate only his shareof a copyright grant without the cooperation of other co-authors (such as co-writers, bandmembers/performers, and, potentially even producers and sound engineers) — and sets the stage for possible future showdowns involving Bob Dylan, Tom Waits, Tom Petty, and other high-profile musicians who have sent copyright termination notices of their own.

Of course, no one is happier about this than Willis himself, who sounds like he was raring for a fight — and now relishes his victory.

Viacom v. Time Warner Cable:  When we wrote, in December 2011, about Viacom and Time Warner’s clash over Time Warner Cable’s launch of an iPad app that allowed subscribers to view Viacom channels on their mobile devices, the dispute was already see-sawing between “almost resolved” and“fighting to the death.”  But sure enough, by May 2012, the case had settled — with media outlets reporting (despite the confidential nature of the settlement) that Time Warner would not pay Viacom anything extra for iPad streaming of Viacom channels.

But that one settlement hardly resolved the future of the television industry, which continues to struggle to find a new business model in an on-demand, anti-advertising, rapidly technologically evolving age.  Less than two weeks after Viacom and Time Warner Cable settled their iPad dispute,ABC, CBS, NBC, and Fox all went to war with Dish Network over its new AutoHop feature, which allows subscribers to automatically remove commercials from their DVR recordings of broadcast TV shows.  In November, a federal judge in California denied Fox’s attempt to block Dish Network from offering the AutoHop service, but the victory for Dish Network was incomplete, as the judge indicated that she was inclined to accept some of Fox’s copyright infringement theories.  Dish Network and the networks have essentially picked up exactly where Viacom and Time Warner Cable left off, effectively seeking to define the future of television industry and technology in the courtroom instead of the R&D lab.  Great.

Zuffa v. New York:  In November 2011, the owner of Ultimate Fighting Championship brought a constitutional challenge to New York State’s then-14-year-old ban on the public exhibition of mixed martial arts, claiming that the statute violated UFC’s First Amendment, Fourteenth Amendment, and other constitutional rights.  While the case rages on, UFC has a few less weapons remaining in its legal arsenal.

In August 2012, federal judge Kimba Wood in New York dismissed two out of seven of UFC’s claims — based on the Equal Protection and Due Process clauses of the Fourteenth Amendment — after applying a highly deferential “rational basis” standard for assessing the New York state legislature’s legislative action (i.e., asking whether the legislature had some “rational basis” for the law).  A helpful note to plaintiffs in constitutional law cases:  if you’re challenging a law and your claim is subject to a “rational basis” review, you lose.

UFC’s First Amendment claims, and its challenges to the New York ban as being vague and overbroad, live on.


The Secret World of Copyright

What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)

Continue reading the full story . . . »