1709 Blog: for all the copyright community

Sunday, 4 October 2015

Jersey Boys case heads for a thin trial

According to The Hollywood Reporter, a judge has now partially denied a summary judgment motion in the trial in which The Four Seasons members Frankie Valli and Bob Gaudio must defend themselves against allegations that the Tony Award winning smash hot musical Jersey Boys infringes an author's copyright.

Rex Woodard was the co-author of a biography of Four Seasons member Thomas Gaetano DeVito, jointly created with the musician, and based on a series of interviews and discussions between the pair over a number of years which revealed  that the wholesome foursome had actually been engaged in "criminal enterprises" and had "underworld contacts".  The pair agreed to be co-authors and share in any profits. Woodard died of lung cancer in 1991 and subsequently DeVito registered the Work at the US Copyright Office, in his name alone. He subsequently granted defendants Frankie Valli and Robert Gaudio (also both Four Season’s members) an irrevocable, exclusive, perpetual, worldwide and assignable licence to freely use the Work and Gaudio and Valli further sub-licensed these rights, which allowed the Work to subsequently form the basis for the screenplay of the hugely successful ‘Jersey Boys’ musical. After the play was first staged in 2005, Woodward’s widow, Donna Corbello, learned of the link in 2007 and amended the US copyright registration in 2009 to include her late husband Woodard and it was revealed that the show's writers, along with several of its actors, had access to Woodard's original work and that DeVito had granted Valli and Gaudio, "a license to freely use and adapt certain 'materials,' including his 'biographies' for the making of the Broadway musical.

Corbello brought a claim in the District Court of Nevada against DeVito and the other defendants including Valli, Gaudio and the show’s producers and directors for copyright infringement. DeVito and the other defendants argued that the claim was barred by applicable statute of limitations and that foreign copyright claims could not apply to the claim. Whilst the court found that the action was not time barred (as Corbello only learned of the infringements on 2007) and the court also dismissed claims about a lack of personal jurisdiction, it agreed on the matter of foreign copyright claims and that only US copyright law could apply and in the case of the claim against Jersey Boys Record Limited concerning the release of a ‘Cast Album’ of sound recordings from the Broadway show the court found that this was not substantially similar to the Work to infringe. But most importantly the court said that whilst Woodward was co-author of the Work, DeVito’s assignment of rights to Valli and Gaudio and the onward licence to the show’s producers were valid as they pre-dated the plaintiff’s copyright claim and the court granted partial summary judgment in favour of all defendants save DeVito, meaning Corbello’s claim could proceed to trial, but was now solely against Woodward’s co-author DeVito.

In February this year the 9th Circuit Court of Appeals reversed this decision. Further complicating the manner was the fact that the 1999 license deal between DeVito and Valli had a reversionary clause that was triggered if producers were not on board with Jersey Boys soon enough. In such event, Valli and Gaudio would lose rights to DeVito's materials (including Woodard's book). And so, the coming trial will first look at that deal to produce the Broadway musical, to determine whether the reversionary clause was ever triggered. 

However U.S. District Judge Robert Jones has warned the plaintiff that if the trial can proceed, as the book and the musical are based on historical facts, Corbello will have to prove "virtually identical copying" because the judge notes that historical works are entitled to lesser protection than works of fiction - so called 'low authorship' or  'thin' copyright protection. Facts are in the public domain and what happened to members of The Four Seasons are historical record - suggesting that only Woodward's expression of these facts or his  'unique selection and arrangement' of otherwise unprotectable elements' would attract copyright protection.

The case is scheduled to go to trial in May 2016.


Friday, 2 October 2015

New 'per minute' rates from MCPS for UK TV

From distributions this month,  the UK's mechanical rights collection society, the MCPS, will be updating the ‘per minute’ rates for music broadcast on ITV1, BBC1 and BBC2, both regionally and nationally.  The total revenues that will be collected and distributed remain the same, but the change is in the way revenues are allocated to members.

The current process means a flat ‘per minute’ rate is used to calculate the royalty for music licensed for both UK-wide and regional programming (e.g. National news is UK-wide, local news is specific to an individual region). The MCPS rightly point out that this method does not recognise regional differences in audience size or the amount of music that is used in each region.  The collection society says that the update "will introduce a fairer way of distributing broadcast royalties. The amount [your] royalties will increase or decrease will depend on where your music is used. Based on our analysis, the difference will be less than £50 per year for approximately 83 percent of those who see a change."

The table below shows the current and estimated new ‘per minute’ rate paid if your musical work is used across the entire BBC or ITV network.

BroadcasterCurrent Peak rate(£/min)Peak rate from October 2015 dist.  (£/min)*
ITV1 Network£5.30£28.10
BBC1 Network£45.27£58.23
BBC2 Network£10.73£12.69
*Forecast based on current ‘per minute’ rates

While the network rate has increased, the ‘per minute’ rate for an individual region has now decreased to reflect actual audience size and music usage. Please see the table below for the estimated new regional rates: 

BroadcasterCurrent Peak rate(£/min)Peak rate from October 2015 dist.  (£/min)*
BBC1 Channel Islands
BBC1 East (Norwich)
BBC1 East Midlands (Nottingham)
BBC1 Hull
BBC1 London
BBC1 North (Leeds)
BBC1 North East (Newcastle)
BBC1 North West (Manchester)
BBC1 Northern Ireland
BBC1 Oxford
BBC1 Scotland
BBC1 South (Southampton)
BBC1 South East (Tunbridge Wells)
BBC1 South West (Plymouth)
BBC1 Wales
BBC1 West (Bristol)
BBC1 West Midlands (Birmingham)
BBC2 England
BBC2 Northern Ireland
BBC2 Scotland
BBC2 Wales
ITV1 Anglia
ITV1 Border
ITV1 London (Carlton/LWT)
ITV1 Central
ITV1 Channel
ITV1 STV North (Formerly GRAMPIAN)
ITV1 STV Central (Formerly STV)
ITV1 Granada
ITV1 Cymru Wales (Formerly HTV)
ITV1 Meridian
ITV1 Tyne Tees
ITV1 UTV (Formerly ULSTER)
*Forecast based on current ‘per minute’ rates

Hard cheese on the menu - no copyright in a sandwich filling recipe or name

Back in February this year we reported on the case of Tomaydo-Tomahhdo LLC et al v. George Vozary et al (CASE NO. 1:14 CV 469  US District Court  Northern District of Ohio Eastern Division) where.a federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law after Rosemarie I. Carroll had taken legal action against a local rival offering similar dishes including sandwiches, salads, pizza and chicken wings, none of which were new or innovative and none contained unique or signature ingredients: The claimant's allegation that her book of recipes had been copied failed as Carroll had no protectable interest in any copyrightable works, in all events there was no evidence of copying. and according to the defendants, copyright protection did not extend to the recipes themselves - as at best IF the recipe book was worthy of copyright protection, it extended only to the layout and other artistic embodiments contained in the book itself. Judge Patricia A Gaughan agreed, holding that even if the recipe book had a copyright as a compilation (in the "order and manner of the presentation of the compilation’s elements") there was no copyright in the actual recipes: "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b)" adding "Certainly plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches". 

Now in a similar case, an appellate court has held that neither a chicken sandwich recipe nor its name is eligible for copyright protection in the U.S. In Colón-Lorenzana v. South American Rest. Corp., Case No. 14-1698 (1st Cir., Aug. 21, 2015) the claimant, a worker at a fast-food restaurant, suggested a concept for a new chicken sandwich, complete with his own recipe and a name - the “Pechu Sandwich": This consisted of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun. Subsequently, the restaurant began selling the sandwich and obtained Puerto Rican and federal registrations for the trademark. The claimant sued the fast-food restaurant, claiming that the restaurant had infringed his copyright in the sandwich’s recipe and its name, and committed fraud on the U.S. Patent and Trademark Office in obtaining its trademark registration for the mark “Pechu Sandwich.” The District Court granted the restaurant’s motion to dismiss the claims. Now the First Circuit affirmed the dismissal of the copyright claims, finding that neither the recipe nor the trade name fell into any of the eight enumerated categories of works available for copyright protection. The fraud claims were also dismissed.


Thursday, 1 October 2015

The CopyKat - Holy haberdashery, Batman!

The 9th U.S. Circuit Court of Appeals has confirmed a 2012 District Court judgment that held that the Batmobile's bat-like appearance and other distinct attributes, including its high-tech weaponry, attract opyright protection that can't be replicated without permission from DC Comics, the copyright holder. "As Batman so sagely told Robin, 'In our well-ordered society, protection of private property is essential,'" Judge Sandra Ikuta wrote for the three-judge panel. In its ruling, the 9th Circuit said that Mark Towle advertised each $90,000 replica as the "Batmobile," and used the domain name batmobilereplicas.com to market his business. He also advertised that the replicas would get noticed because of the Batmobile's fame, the court said. Come on, Robin, to the Bat Cave! There's not a moment to lose! and more Batman and Robin quotes here

The CEO and chairman of the RIAA has said that the current notice and takedown anti-piracy process is both costly and increasingly pointless. Cary Sherman says the USA's safe harbor provisions contained in the DMCA have forced labels into a "never-ending game" of whack-a-mole while sites under its protection effectively obtain a discount music licensing system clarly highlighting the frustration the major record labels and their Hollywood counterparts feel about framework designed to facilitate the removal of infringing content on the Internet. More on TorrentFreak here. Sherman also commemnted on “the flawed licensing regime in which we have to operate” saying “Government-set licensing has enabled services like Sirius XM to use music at below-market rates, based on a decades-old subsidy that has long outlived its purpose” adding “Even worse, under current law, AM/FM radio broadcasters pay absolutely nothing for the sound recordings they use to draw listeners and generate billions of dollars in revenue. In a marketplace that values innovation, it’s ironic that it’s the legacy technologies enjoying government-granted economic benefits and competitive advantage” and "while the music industry has embraced new technology and business models, the beneficiaries of this broken system cling to this antiquated law that was enacted at the turn of the century, well before the modern Internet and today’s most advanced (and unimagined) technologies". More on CMU here.  

National Music Publishers Association (NMPA) boss David Israelite, responding to an argument from Pandora which suggested that the majority of US citizens won't pay for streaming, has said that 'free' music is devastating for songwriters saying "Pandora is keeping 54% of its revenue, and sharing only around 4% with the creators who write the songs. That means Pandora believes that delivering songs over an Internet connection is somehow worth more than 13 times the songs themselves. There is no news, no sports, no weather, no comedy – only music. Yet the music creators get less than 5% of the revenue generated from the service" citing Taylor Swift who famously said last year “I'm not willing to contribute my life's work to an experiment that I don't feel fairly compensates the writers, producers, artists and creators of this music. And I just don't agree with perpetuating the perception that music has no value and should be free.”   La Roux. tweeted this week: "Thanks for the £100 for this quarter [Spotify] ...one more month and I might be able to afford your premium service. Lucky me!" Separately Pandora CEO Brian McAndrews told reporters that Pandora had now paid out a historical  $1.5 billion in royalties saying: "I am proud of our enormous royalty contributions, and our progress on building on a broader vision for the future of music. We are very passionate about our mission to help artists find their audience and help listeners find their music - music they love, that moves them, that they personally connect with - and we are achieving significant momentum".

A company called  Library Ideas LLC has spent the past five years pioneering a 'free' streaming model in one of the only places you might expect one nowerdays: The public library. The service is called Freegal, and in August the Watsonville Public Library opened an account. As long as the branch pays an annual fee, patrons can stream thousands of artists from a wide variety of record labels, including major labels, many under Sony Music’s large umbrella. Cardholders can log in from anywhere — they don’t need to be inside the library — and they’re allowed up to three hours of streaming per day and three free downloads per week - but there is a cost - a cost to the library of about $4,000 per annum. Another service, . Hoopla, serves 816 libraries across North America. Its pricing structure differs from Freegal’s — libraries only pay for content that patrons borrow and the service extends to eBooks and DVDs. Both services say recording artistes (via labels) and music publishers (and thus songwriters) get paid, the later through performing right organisations. More here.

Germany's national arbitration board on copyright has rejected German copyright collection company VG Media suggested six per cent “Google Tax”. Although the ancillary copyright tax law applies to Google, the board, which is part of the German Patent Trademark Office (DPMA), said VG’s request for six per cent of Google's German revenue was far too high. VG had already reduced its demands from 11% according to the Register.

And finally ..... another  fake Facebook copyright message claiming to protect users' media has been making the rounds on the social network. The message claims to put copyright protections on a user's posts after they share the status update. Its nonsense and of course users of the site will have already agreed to Facebook's privacy terms when they sign up. 

Tuesday, 29 September 2015

Mongolia commits to Marrakesh

The World Intellectual Property Organization (WIPO) has now released Marrakesh Notification No. 10: Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. As its title suggests, it reflects the deposit by the Government of Mongolia last week of its instrument of ratification of the Marrakesh Treaty. Readers of this weblog can probably chant in their sleep the mantra that
The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 18 of the said Treaty.
The day will come, however, when we will all be astonished to discover that the requisite number of countries has been reached [for a reminder of the coming-into-force details just click here].

Russian court orders VK to implement effective technology to block illegal uploads

Russian social network vKontakte (VK) has been ordered by a Russian court to use effective technology to prevent copyright infringement of the recordings of two record companies.

The IFPI say that the ruling, handed down in the Saint Petersburg & Leningradsky Region Arbitration Court on Monday, is a significant judgment which, when implemented, should improve the environment for developing a thriving licensed music business in Russia. The IFPI is the organisation that represents the global recording industry.  It was supported by the Russian National Federation of the Music Industry (NFMI).

Universal Music and Warner Music had brought copyright infringement cases against VK in April 2014.  The judge issued an oral decision on 28th September, and the full judgments will be handed down in due course.

The court granted the record companies’ request to require VK to use effective technology to prevent the upload of their sound recordings to its service, meaning that VK must remove the record companies’ recordings and prevent them from being uploaded again in the future. The claimaints said 98% of their sound trecordings featuring in the Top 40 UK chart from the past seven years are available on VK's unauthorised music service, and  whilst VK did have a take down procedure, VK's filtering  technology, which was meant to prevent unauthorised uploads, was inadequate and ineffective. The claimants presented expert evidence that VK must be fully aware of the scale of the infringement, not least as VK advertised the availability of infringing tracks through its charts of the 'most downloaded' tracks and its recommendation service to individual users.

IFPI Chief Executive Officer Frances Moore welcomed the judgment saying: “This is a very important and positive decision for the Russian music market and for music creators in Russia.   VK’s infringing music service has been a huge obstacle to the development of a licensed business in Russia, making available hundreds of thousands of copyright infringing tracks to more than 70 million daily users. Now, the Russian court has ordered VK to use technology to stop infringements.  This is good news for rights holders in Russia.  We now look to VK to implement the court’s decision and stop these ongoing infringements.”

Record companies file legal proceedings against vKontakte for deliberately facilitating piracy on a large scale

Monday, 28 September 2015

Recent French Ruling on the Protection of Slogans


The issue of the protection of slogans (or taglines) as intellectual property is always of interest inasmuch as it is often perceived as existing at the crossroads of copyright and trademark law.

As we know, copyright protection raises thorny issues of originality (in short expressions) and trademark registration for such expressions is often complicated by their inherently promotional and laudatory nature.

However, a recent (June 9, 2015) ruling by the French Cour de cassation reminds us that general tort law should not be ignored in such cases and, in particular, in French law what is called parasitisme or parasitical conduct.

Cora, a retailer that had been using the advertising slogan “large volumes = low prices” (gros volumes = petits prix) for 25 years, took legal action against Auchan for committing what it felt were acts of parasitical conduct by distributing catalogues featuring the slogans ‘mini prices for large volumes’ (prix mini sur gros volumes), ‘large volumes at mini prices’ (gros volumes à prix mini) and ‘large volumes big savings’ (gros volumes grosses économies).

The Cour de cassation upheld the factual analysis of the lower court, which had held in favour of the plaintiff and stated that “Parasitism, for commercial traders, exists where one entity rides on the coattails of another by unduly benefiting from its repute or investments, irrespective of any risk of confusion”. 

Following a syntactical, phonetic and visual analysis of the slogans at issue, the court found that the combination of two groups of three-syllable words ‘gros volumes’ and ‘petit prix’ placed on equal footing is not a part of common everyday language. It also found that the association of the two phrases to be original  and distinctive of Cora. Auchan used identical syntactical structure in forming its slogans, merely replacing the sign ‘=’ in Cora’s slogan with a coma, where the use of words ‘prix mini sur gros volumes’ and ‘gros volumes à prix mini’ had a resonance that was parallel to that of Cora's. Moreover, Auchan’s use of slogans, even after repeated warnings given by Cora, did not seem to be mere coincidence as there were numerous other ways to express the same idea. Finally, the court noted that Cora had carried out multiple advertising campaigns that contributed to its reputation.

Link to ruling here

Thursday, 24 September 2015

The CopyKat - The Pirate Bay on new Swedish advertising blacklist

The Pirate Bay and several other locally significant 'pirate' sites have been placed on an advertising blacklist. The initiative is the result if a collaboration between anti-piracy group Rights Alliance and the national association of Swedish advertisers which has  more than 600 member companies. As Torrent Freak says, this “follow the money” approach is gaining momentum worldwide and is largely centered on the companies financing pirate sites with their advertising spend.

Acording to daya presented by the Motion Picture Association at a conference focused on online law enforcement in Southampton last week, 504 web blocking injunctions have been issued in Europe: Italy tops the list of orders against  internet service providers requiring them to block consumers access to copyright infringing websites, with 238 injunctions now issued. The UK comes second with 135 web-blocks now in place. More here.

Aurous, which MBW likened to the new Grooveshark last week and which was also called the 'Popcorn Time for music', and which we highlighted in the last CopyKat, has pulled its attempted crowdfunding on IndieGogo citing "unwanted attention"

Raanan Katz , the real estate mogul and owner of the Miami Heat basketball team, has learned about copyright law the hard (and expensive) way. Irina Chevaldina,an unhappy former tenant of Katz’s company, copied a rather unflattering photograph of Katz taken by photographer Seffi Magriso onto her blog which was highly critical of Katz. Unhappy about this, Katz acquired the photo’s copyright, and then claimed Chevaldina had infringed his newly acquired copyright. The District Court gave the claim short shrift - and applying the standard tests they found fair use, and in particular found: The nature of the use was non-commercial - Chevaldina used the photo to criticise, ridiule and satirize Katz; and because Katz acquired the photo to block any publication, Chevaldina's use could not have any effect on the marketplace:  "Due to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work", concluding "“every reasonable factfinder would conclude the inclusion of the Photo in her blog posts constituted fair use.” Chevaldina was awarded her attorney's fees. 

Shares of in Pandora Media, the Internet radio company have jumped by 5.3% after the firm received good news in an ongoing fight over royalties. The company said it "was pleased that the U.S. Registrar of Copyrights agreed that the company's pact with Merlin Network, a global rights agency for independent musicians, was admissible as a benchmark in royalty proceedings before the Copyright Royalty Board  according to a Reuters report. In May The Federal Communications Commission gave Pandora Media permission to buy a small radio station in South Dakota in a move to obtain lower royalty rates. ASCAP's objection to the acquisition of the terrestrial radio station was finally put to rest by the FCC last week .The agency rejected the performance rights organization's request for reconsideration of its original ruling.

The cabinet reshuffle in Canberra has seen the Australian Attorney-General George Brandis not only lose his position as the Minister of Arts, but his responsibilities for copyright and content classification - which have been moved from his office to that of newly appointed Communication Minister Mitch Fifield.

And finally, the he much delayed extradition hearing of the former management team of MegaUpload has begin in New Zealand, despite lawyers for MegaUpload founder Kim Dotcom and his former colleagues again trying to get their clients' extradition case pushed back, not least as court imposed restrictions on funds mean Dotcom and his colleagues cannot hire U.S based experts in U.S. copyright and criminal law.