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Entries in copyrights (10)

Friday
Sep182015

Online Piracy: 9th Circuit Cautions Copyright Holders re DMCA Takedown Notices

 

Franchise Agreement LawyerIntellectual Property Attorney

 

 

by Tal Grinblat
(818) 907-3284

 

A mother who uploaded a 29 second video to YouTube probably never dreamed she'd wind up with over a million views and a lawsuit by a major music publisher that went to the Ninth Circuit court of appeal.

Stephanie Lenz first videotaped her toddlers cavorting in her kitchen back in 2007 – Prince's Let's Go Crazy was playing in the background. She posted the video online along with the title "Let's Go Crazy" #1 to share with her family and friends. About four seconds into the video, Lenz asks her thirteen month-old son “what do you think of the music?” after which he jumped up and down while holding a toy.

An employee of Universal's music division (acting as Prince’s publishing administrator responsible for enforcing his copyrights) found the song on YouTube, considered the video's title and Lenz's question to her son and other details, to conclude the song was the focus of the video. Universal then sent YouTube a takedown notice pursuant to Title II of the Digital Millennium Copyright Act (DMCA) demanding the removal of Lenz's video.

To avoid infringement claims, YouTube complied with the DMCA notice and subsequently notified Lenz of the removal – citing Universal's claims of copyright infringement. Section 512(c) permits service providers, like YouTube to avoid copyright infringement liability for storing users’ content if the service provider “expeditiously” removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. 17 U.S.C. § 512(c).

Lenz responded with a counter-notification to Universal, asserting fair use of the Prince song, and a demand that YouTube reinstate the video.

Abuse of the DMCA

If an entity abuses the DMCA notice procedure, it may be subject to liability under §512(f). That section provides:

Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages.

The 9th Circuit, in considering Lenz's claims that Universal misrepresented Lenz’s copyright infringement in their takedown notice to YouTube, questioned whether or not Universal abused the takedown procedures by not first evaluating whether or not the alleged infringement constituted fair use.

The Copyright Act of 1976 defines fair use as use of another’s work for purposes of criticism, comment,  news reporting, teaching, scholarship, or research (17 U.S.C. § 107). The Act includes a four part test to determine what constitutes fair use:

(1) Purpose or character of use, including commercial or nonprofit purposes;

(2) Nature of the copyrighted work;

(3) Amount of the work used;

(4) Effect of the use of the work on its market value.

The three judge panel decided there was not enough evidence to conclude that Universal knowingly made misrepresentations of copyright infringement in the DMCA takedown because the copyright holder need only form a subjective good faith belief that a use is not authorized to bring a DMCA take down notice.  However, the Court made it clear that copyright holders must consider the doctrine of fair use before issuing takedown notices:

Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it. 

Should a jury conclude that Universal ignored or neglected to assess fair use before sending the takedown notification, it will be liable for damages.  Similarly if in evaluating the evidence a jury finds Universal’s actions were NOT sufficient to form a subjective good faith belief about the video’s fair use or lack thereof, Lenz could again recover damages from Universal, even if Lenz’s damages are nominal.

An attorney at the Electronic Frontier Foundation whose goals include protecting free speech online and represented Lenz, issued this statement:

Copyright abuse can shut down online artists [sic]   political analysts or — as  in this case — ordinary families who simply want to share snippets of their day-to-day lives. Universal must stop making groundless infringement claims that trample on fair use and free speech.

Tal Grinblat is an Intellectual Property Attorney and Shareholder at our firm. Contact him via email: tgrinblat@lewitthackman.com or by phone: (818) 907-3284.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr232015

Music Artists take Charge - The Fair Play Fair Pay Act

 

Franchise Agreement LawyerIntellectual Property Attorney

 

by Tal Grinblat
818.907.3284

 

Music RoyaltiesOn April 13th, four Congressional members introduced the Fair Play, Fair Pay Act of 2015 (FPFPA), which requires traditional radio stations to pay song writers and performers royalties – just as their internet and satellite counterparts do.

Additionally, FPFPA seeks to put a stop to broadcasters exploiting music released before 1972. Currently royalty rights for recordings made before 1972 are governed by state law and not the federal Copyright Act. And brick and mortar radio stations must only pay royalties to the composers or publishing companies, not to the actual performers and musicians for the songs.

The Act’s goals are to settle other legal questions regarding royalty payments.

Companies like Muzak began streaming music to Dish Network before the Digital Millennium Copyright Act was signed into law by President Clinton in 1998, and were "grandfathered" into paying 8.5 percent of revenue towards royalties, rather than the 15 percent currently mandated.  A recently filed suit contends that Muzak should not be allowed to pay the lower royalty rate as it expands to other platforms like DirecTV's Sonic Tap.

The FPFPA was introduced by Representatives Jerrold Nadler of New York and Marsha Blackburn of Tennessee, and is co-sponsored by John Conyers of Michigan and Ted Deutch of Florida. A whole marching band of music greats (Cyndi Lauper, Marshall Crenshaw, Gloria Gaynor, to name a few) have also come out in support of FPFP.

Copyright Attorney

What else is on track for the Fair Play Fair Pay Act

  • Grounding: Brick and mortar AM/FM stations will have to pay performance royalties just as cyber stations do, under new terrestrial performance rights.

  • Pay Parity: Unified royalty standards for all radio platforms to ensure that streamers and stations pay the same rates.

  • Un-Equalization: Capping royalty obligations for stations with less than $1M annual revenue at $500 per year (and at $100 a year for non-commercial stations); and exempting incidental or religious uses of music from royalty obligations.

  • Messaging: Providing a mechanism for pre-1972 recordings and artists to be paid royalties.

  • Publisher Protections: Prohibits use of the FPFPA to lower royalties for artists and publishers.

  • Canon: Streamlining royalty payment practices. 

In the past, broadcast stations were allowed to play recorded music free of charge – programmed music was considered a promotional use that prompted listeners to buy records, tapes and CDs, not to mention tickets to concerts.  But those sales have dropped dramatically with the advent of free streaming services – and both satellite and internet services have exploited the lack of federal copyright protection for pre-1972 recordings.

 

Tal Grinblat is an Intellectual Property Attorney. Contact him via phone: 818.907.3284, or by email: tgrinblat@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jun262014

U.S. Supreme Court Pulls Plug on Aereo

 

Franchise Agreement LawyerCopyright Attorney

 

by Tal Grinblat
818.907.3284

 

For eight dollars a month, customers in 10 metro areas could watch real-time television broadcasts or record programming via computer and smart devices, courtesy of a company called Aereo.

For consumers, it was like having access to a cable company's digital video recorder (DVR) box on your cell phone. For the entertainment studios and program creators though, it was like giving a thief the keys to the store. 

Copyright Law

Chet Kanojia, founder and Chief Executive Officer, launched the startup last year, and immediately faced allegations of copyright infringement, since Aereo neither owned rights to the programming, nor was licensed to perform the work publicly. The plaintiffs first sought a preliminary injunction in Federal District Court – that petition was denied.  A Second Circuit Court of Appeals upheld that denial.

Yesterday, the U.S. Supreme Court found that Aereo violates the federal Copyright Act of 1976 (The Act). The Court considered two issues. First, did the internet company "perform copyright work publicly", as described in §106(4), and second, whether or not Aereo "transmits a performance" as described under §101 of The Act.

Aereo claimed it didn't perform anything, it merely offered its subscribers the software that does what a TV antenna or DVR would do. This software simply responds to the subscribers' instructions. The company bolstered its defense with technical explanations of how they operate:

Thousands of tiny antennas stored in warehouses capture broadcast signals, and each antenna is assigned to an individual Aereo customer. No two customers are watching the same copy of the program being broadcast or recorded; therefore, there is no public performance by Aereo.

Chief Justice Stephen Breyer writing yesterday's opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, John Roberts and Sonia Sotomayor. The Justices disagreed with Aereo's defense:

The fact that each transmission is to only one subscriber, in Aereo's view, means that it does not transmit a performance "to the public.". . . these differences do not distinguish Aereo's system from cable systems, which do perform "publicly." . . . We do not see how the fact that Aereo transmits via personal copies of programs could make a difference.

 

Blame Cable TV

Before the 1976 amendment to the 1909 Copyright Act, cable television companies (known then as "community television antenna systems" or CATVs) intercepted broadcasts to relay the signals to their own paying customers. That was considered legal until lawmakers closed the loophole by writing in what's now known as the "Transmit Clause".

This clause makes these retransmissions copyright infringement. Section 101 says:

A “transmission program” is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit; and to “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Section 106 of The Act gives a copyright owner exclusive right to perform the work publicly.

Tal Grinblat is a Shareholder in our Intellectual Property Practice Group. Contact him via email: tgrinblat@lewitthackman.com or by phone: 818.907.3284.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Apr232014

Copyrighted Images: Individual Works Registered in Group Are Protected

 

Franchise Agreement LawyerState Bar Certified Specialist, Franchise & Distribution Lawby Tal Grinblat
818.907.3284

 

Stock photo agency, Alaska Stock, LLC, registered groups of photographs with the Copyright Office. In custom with Copyright Office regulations, individual photos and photographers were not all listed on the registrations. Alaska Stock simply registered the group of photos s as "Alaska Stock CD Catalog 1, 2, 3…"

The name of author on the copyright applications and resulting registrations listed three photographers and a specified number of others for each catalog, i.e., John Doe, Jane Smith, Joe Black and 98 others. The compilations of photographs each contained hundreds, and even thousands of photographs submitted by 32 to 106 individual photographers.

This method was prescribed by the Register of Copyrights.

This suit arose when Houghton Mifflin Harcourt Publishing Company, who licensed certain photographs from Alaska Stock, published far more images than they paid for. Alaska Stock therefore sued for injunctive relief, actual and statutory damages, attorneys' fees and associated costs arising from Houghton Mifflin's copyright infringement.

In 2010, a District Court in Alaska ruled against Alaska Stock, citing previous rulings (Muench Photography  v. Houghton Mifflin 2010, and Bean v. McDougal Littell 2008), as well as sections 409 and 411 of the Copyright Act.

The District Court held Alaska Stock’s registrations were defective because Alaska Stock did not provide the names of each of the photographers and the titles of each of the photographs in the registrations. Accordingly, the district court found the registrations succeeded in registering the catalogs themselves (as a whole), but not the individual photographs within them. On March 18, the Ninth Circuit reversed, finding in Alaska Stock’s favor.

 

Copyright Act of 1976: What Does It Say?

The district court first questioned whether Alaska Stock could claim copyright infringement in the individual photographs, as Section 411 of the Copyright Act requires a registration to sue for infringement. The court then looked to the Copyright Act’s procedures for registration. 

Section 409 of the Copyright Act specifies that applications for registration must include:

 

  1. Name and address of copyright claimant

  2. For anonymous works: Name, nationality or domicile of authors, and date of death if author is deceased

  3. For anonymous works: Name, nationality or domicile of authors

  4. Statement, if work is made for hire

  5. For copyright claims made by non-authors: statement of how claimant obtained copyright ownership

  6. Title of the work

  7. Year of completion of work

  8. Date and nation of first publication, if published

  9. Identification of preexisting work if the work is a compilation or derivative

  10. Other information bearing upon the preparation, identification, existence, ownership or duration of the copyright

 

Accordingly, the district court found the registrations were defective because they did not disclose the names of the authors of the individual photographs or the title of any individual photograph.


Ninth Circuit: The Big Picture

The court of appeal reversed finding that a title of a work can refer to a collection (which Alaska Stock did), and that as the author of the collective work, only Alaska Stock’s name was needed on the application. This was because when the applications were filed, the authors of the individual photographs had assigned their rights in the photos to Alaska Stock, so that Alaska Stock owned both the photos within the collection and the collection itself.

The court of appeal found that the Register of Copyrights has the authority to prescribe the method for registering a body of work under a single title and/or listing.  As a result, the Court held that Alaska Stock successfully registered the copyright both to its collections and to the individual images within the collections.

Practitioners Note:  since the time of Alaska Stock’s Copyright registrations were issued, the Copyright Office changed its procedures for registering published and non-published collections of photographs. Now all authors of the photographs must be the same and applicants must assign a title to each photograph deposited and specify the title on both the application form and the deposit itself. See Group Registration of Published Photos or Group Registration of Unpublished Photos for details.

Tal Grinblat is an Intellectual Property Attorney at our firm. Email tgrinblat@lewitthackman.com or call 818.907.3284 for more information. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Nov272013

“She’s Crafty”: GoldieBlox, Beasties, Copyrights and Codicils

Civil Litigation AttorneyIP Litigation

 

by Nicholas Kanter & Robert A. Hull, Esq.
November 27, 2013

In 1986, New York hip hoppers the Beastie Boys released Licensed to Ill, the first rap LP to top the Billboard album chart, selling over 9 million copies in the U.S. One of the singles from the hit album was Girls. The song, in which the Beastie Boys sing about their affection for girls, is riddled with sexist lyrics, such as:

Girls - to do the dishes

Girls - to clean up my room

Girls - to do the laundry

Girls - and in the bathroom.

Seventeen years later, northern California toy company GoldieBlox Inc. is rewriting feminine roles, by selling toys meant to inspire young girls to construct, engineer and invent. The problem is they also rewrote the Beasties’ song Girls to market their products:

Girls to build the spaceship,

Girls to code the new app,

Girls to grow up knowing

That they can engineer that.

The rewritten song and accompanying video became a YouTube sensation, receiving over 8.5 million hits since being uploaded to YouTube on November 17, 2013.

In a lawsuit filed on November 21, 2013 in the Northern District of California, GoldieBlox claims the Beastie Boys threatened them with copyright infringement.

Rather than wait for the Beastie Boys to sue, GoldieBlox filed their complaint, seeking a declaratory judgment that their parody video does not infringe the rights of the Beastie Boys (and others that hold rights to the song), and constitutes fair use.

 

Fair Use: Is GoldieBlox's Version of Girls Defensible or Not?

 

GoldieBlox claims they created their song and video specifically to “make fun of the Beastie Boys song, and to “further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.” 

Based on the underlying purpose of the song and its intended effect, GoldieBlox asserts their song is protected by the Fair Use Doctrine.  

Under the Fair Use Doctrine, certain uses of another's copyright-protected work may not be considered infringement if the protected work is used for purposes of “criticism, comment, news reporting, teaching…scholarship, or research”  ( 17 U.S.C. §107). Whether a particular use qualifies as “fair use” is determined by considering four “fair use” factors, which include:

  1. The purpose and character of use – how transformative is the new material? Does the new material add new information or understanding?

  2. The nature of copyrighted work – what is the value of the work vis-à-vis the core of the copyright’s protective purposes.

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole – this factor looks at whether the quantity of the original work used is reasonable in relation to the purpose of the copying.

  4. The effect of the use upon the potential market for or value of the copyrighted work – does the new material deprive the copyright owner of income in some way?

While GoldieBlox’s song by itself seemingly qualifies as Fair Use, the crux of the lawsuit (assuming it does not settle) will likely center on whether GoldieBlox’s use of the song to advertise and sell its retail goods causes the song to lose Fair Use protection.

 

A Brass Monkey in the Machine?

 

Complicating the matter further is the fact that one of the members of the Beastie Boys, Adam “MCA” Yauch, died last year leaving a will which provided that in no event may “any music or any artistic property created by me be used for advertising purposes.”  Another fly in the ointment was the fact that apparently, MCA hand wrote these words on his prepared will near language which prohibited MCA’s image or name from being used for advertising purposes.

It is not clear whether the added language was part of the original will or was added later. If added later, such an amendment (typically called “codicils”) must be executed with the same formalities required of the will. Those formalities include executing the codicil in the presence of witnesses, etc.

Thus, if the handwritten language was added by MCA after the execution of the will, but for example without the presence of witnesses, it could be successfully challenged. However, there seems to be no mention in the press of a specific challenge to such language. Therefore, the language was likely present at the execution of his will.

Presuming this language was valid, in order for it to be enforceable in this case, obviously MCA must own an interest in the song (i.e., the interest must be part of his “estate”).

But, if MCA owned an interest but had previously transferred this interest into, for example, a living trust, the trust would be the owner, not MCA’s “estate”). If there was no commercial prohibition language in the trust, then the will language would not apply to prohibit commercial exploitation of the trust’s interest.

Also, this will restriction would apply only to the beneficiaries of Yauch’s estate. Absent an agreement to the contrary, joint owners of a copyrighted work have an equal right to license the copyright, provided that the other joint owners get their shares of the proceeds.

Thus, if there was not such an agreement between MCA and the other Beastie Boys preventing commercial exploitation of this song, the others could independently license the song to GoldieBlox, despite the prohibition by MCA, with MCA’s estate receiving its share of the proceeds. The prohibition by MCA would likely apply to the beneficiaries of his song interest, but would not be enforceable against the other joint owners.

From the published news reports, it appears as though the others do not wish to permit GoldieBlox to use the song in this manner.  So, MCA’s wishes may indeed be carried out.

However, if the will restriction is not enforceable, MCA’s heirs may be able to license the work commercially, despite objections from the other Beastie Boys.

Ultimately, it will come down to whether the GoldieBlox version is considered a “fair use” of the song. If so, MCA could not have prevented this commercial use while he was living and cannot prevent it after his death.

 

Nicholas Kanter is a Business and IP Litigation Attorney at our firm. Contact him via email: nkanter@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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