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Copyright Rulemaking on Moral Rights

“The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on the moral rights of attribution and integrity. Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.

For more information, click here to visit copyright.gov

So … what are “moral rights”?

Moral rights provide an author with the ability to control the eventual fate of their works. In the US, these rights are limited to visual arts (other countries allow other, more general, moral rights). You can find the statute at 17 USC 106A, commonly called the Visual Artists Rights Act of 1990 (VARA). Under VARA, an artist has the right to control the use of his/her name in connection with a work (including NOT using his/her name in connection with works s/he did not create), prevent the use of his/her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation, prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

For an example of how moral rights work, say you bought a painting by a famous artist working today. This artist is known for his/her French landscapes in the style of Monet; very peaceful, very verdant, very proper. Your idiot stepson, whom you never liked, then decides to spray paint graphic obscenities on the work. The artist, although you actually own the work, can now dissociate him/herself from that work; thus, the work can no longer be sold under Artist’s name with the obscene spray painting. You thus no longer own a work by Artist; if Artist’s name adds value to the work, your painting has just plummeted in value even more than it did with the addition of spray paint.

“The [US Copyright] Office is commencing its study to review how existing U.S. law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area. To support this effort and provide thorough assistance to Congress, the Office is seeking public input on a number of questions. “

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What Is the DOJ Thinking?????!

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

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Changes Coming for Copyright…

This year’s two-year Congressional House Judiciary Committee’s review of copyright “focused on music licensing, discussing recently introduced legislation that has the backing of the music industry. One proposal, the Fair Play, Fair Pay Act, would establish a performance right and also require all radio formats to pay royalties for the performance of pre-1972 recordings.

These changes to copyright are, for obvious reasons, supported by the musicians and recording artists. Royalties for playing their pre-1972 songs on the radio, in all radio formats no less, are a really good thing for them in that the royalties add additional income to the songwriter’s purse, enabling them to have at least a larger subsistence. It might even enable some of them to leave their day jobs to write music full time, which would add bounty to the music of the culture for which they write.

But wait. Let’s look at the radio stations for a minute. Radio is still a viable medium, but the radio industry has changed from the FCC-recognized model of the station and the broadcast tower and the receiver to the internet. There are literally thousands of shows run by people who want to do a radio show for whatever reason; some of those shows are talk shows, and some are music shows, and some are just junk. I worry about the music shows that play the oldies under this new law. These folks do not, as a general rule, follow the intricacies of the changes to copyright law, and, without proper publication and warning about this new royalty requirement, they could be caught in a vise from which they do not have the means to escape. I can see coming down the pike a reenactment of the RIAA vs. Music Downloaders huge number of cases of the early 2000s. That didn’t work well then; I see no reason why it would work better today.

Don’t get me wrong. I support this addition to the Copyright Act. I want to see songwriters get paid fairly for their contributions to the world, and I think that pre-1972 music should be compensated just as much as post-1972 music. However, I support the addition with the proviso that the public be thoroughly and completely noticed using communication means that they simply cannot miss getting something through even the foggiest radar about this new law. I want to see and hear discussion of this new copyright provision on the news, in the newspapers, on the radio, on PSAs, and all over Facebook and Twitter, and I want to see multiple iterations of the warnings that this new law can, and probably will, cause liability for a careless radio show host for a large bundle of preventable judgment money and attorneys’ costs. This new liability will be in effect even for a fly-by-night internet radio show host. These are the folks who stand to lose the most and who therefore need to see the warning of the effect of this new addendum to the Copyright Act.

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American Broadcasting Companies vs. Aereo, Inc.

A couple of weeks ago, overshadowed by the Hobby Lobby decision, SCOTUS handed down a copyright decision that may substantially limit the ability of transmitters to transmit copyrighted broadcasts without a license to do so.

In American Broadcasting Cos. v. Aereo, Inc., 573 US ___ (2014), Aereo is a subscription broadcasting service that sold “…to its subscribers a technologically complex service that allows them to watch television programs over the internet at about the same time as the programs are broadcast over the air.” Slip Op. at 1. The technology is detailed in the case, so I do not reproduce it here; suffice it to say that through a complex series of technological events, each Aereo subscriber ends up having his or her own dedicated antenna through which copyrighted content is streamed to one computer only. The US District Court for the Southern District of New York, affirmed by the US Court of Appeals for the Second Circuit, found that this technology does not infringe the rights of the copyright holders of the shows that Aereo streams to its users because, first, Aereo does not “perform” within the meaning of the Copyright Act and, second, even if it does “perform,” it does not do so “publicly” because there is a dedicated antenna connected to only one computer, making the streaming a private showing, thus falling outside the “public” performance requirement of the Act to qualify as infringement.

SCOTUS disagrees. In a 6-3 decision delivered by Justice Breyer (the dissent comprises Justices Scalia, Thomas and Alito; all others concur in the majority opinion), the Court decreed that the 1976 Copyright Act was put in place, in large part, to overturn their decision in Fortnightly Corp v. United Artists Television, Inc., 392 US 390 (1968), which held that community-antenna television falls outside of the scope of the Copyright Act of 1952. Given the clear intent of Congress to make such activities fall very definitely within the scope of the Copyright Act, and given that Aereo’s activity are not substantially different from those of Fortnightly, the Court felt duty-bound to overturn the Court of Appeals for the Second Circuit’s holding that Aereo’s activities do not infringe copyright. SCOTUS holds for the plaintiff in determining whether (a) Aereo “performs” within the meaning of the Act and (b) Aereo performs “publicly” within the meaning of the Act.

There is language in the case that indicates that this case can be read narrowly, but this case puts rebroadcasters on notice: The act of rebroadcasting is a “transmission” within the meaning of the Act, and the viewer and broadcaster “perform publicly” within the meaning of the Act.

I advise my clients that it’s always easiest, best, cheapest to get a license to use the copyrighted works of others. This case just goes to show that this advice is still good.

The oral arguments on both sides are actually interesting for those of us who like copyright matters.

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Raging Bull Laches On

The US Supreme Court has issued a decision in the Petrella v. MGM, 572 US ___ (2014).

The equitable doctrine of laches says that if a plaintiff waits too long before bringing a lawsuit, that suit cannot be heard. It’s a common-law version of a statute of limitations. Under a statute of limitations, a case can be forever dismissed because a case was brought too late. Under the equitable doctrine of laches, a case can be forever dismissed because the plaintiff failed to timely bring suit and the defendant was unduly prejudiced by the delay.

In Petrella, the movie Raging Bull (1980) is accused of infringing the copyright in a screenplay written and registered with the US Copyright Office in 1963. Raging Bull is, of course, based on the life of Jake LaMotta. LaMotta had a friend, a writer named Frank Petrella, who co-authored several works on which Raging Bull was based; the copyrights in those works were properly registered in the 1960s and 1970s. While Frank Petrella and his co-author of that screenplay assigned rights and renewal rights to United Artists (now a subsidiary of MGM) in 1979, when Frank died in 1981 (during the first term of the copyright on the Raging Bull screenplay), renewal rights reverted to Frank’s estate under Stewart v. Abend, 495 U.S. 207 (1990), and ultimately to his daughter and heir, Paula Petrella. Paula renewed the copyright in the only one of the three works on which Raging Bull is based in which she could do so, and is now the sole owner of that copyright. In 1998, Ms. Petrella sent notice to MGM that Raging Bull infringes her copyright and threatened suit. In January, 2009, that suit materialized with Ms. Petrella seeking monetary and injunctive relief limited to acts of infringement occurring on or after January 6, 2006 (that is, all acts that occurred within the three-year statute of limitations). MGM promptly answered with the defense of laches, claiming that the delay in filing from 1998 to 2009 was unreasonable and unduly prejudicial. The US District Court for the Central District of California granted the defense and dismissed the case on those grounds. Petrella appealed to the US Court of Appeals for the Ninth Circuit, who affirmed the District Court’s decision. She then appealed to the US Supreme Court, who granted certiorari.

The High Court reversed the decisions below. In a 6-3 decision, the Court decided:

The Ninth Circuit erred, we hold, in failing to recognize that the copyright statute of limitations, §507(b), itself takes account of delay. … [A] successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be hadfor infringement in earlier years. Profits made in those years remain the defendant’s to keep.

Brought to bear here, §507(b) directs that MGM’s returns on its invest­ment in Raging Bull in years outside the three-year win­dow (years before 2006) cannot be reached by Petrella. Only by disregarding that feature of the statute, and the separate-accrual rule attending §507(b), see supra, at 4–5, could the Court of Appeals presume that infringing acts occurring before January 6, 2006 bar all relief, monetary and injunctive, for infringement occurring on and after that date. See 695 F. 3d, at 951; supra, at 9–10.13 Moreover, if infringement within the three-year look-back period is shown, the Act allows the defendant to prove and offset against profits made in that period “deductible expenses” incurred in generating those profits.§504(b). In addition, the defendant may prove and offset “elements of profit attributable to factors other than the copyrighted work.” §504(b). The defendant thus may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work. See Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390, 402, 407 (1940) (equitably apportioning profits to account for independent contribu­tions of infringing defendant). See also infra, at 19–22 (delay in commencing suit as a factor in determining contours of relief appropriately awarded).

Last, but hardly least, laches is a defense developed by courts of equity; its principal application was, and re­mains, to claims of an equitable cast for which the Legisla­ture has provided no fixed time limitation. See 1 D. Dobbs, Law of Remedies §2.4(4), p. 104 (2d ed. 1993) (here­inafter Dobbs) (“laches . . . may have originated in equitybecause no statute of limitations applied, . . . suggest[ing] that laches should be limited to cases in which no statute of limitations applies”). Both before and after the merger of law and equity in 1938, this Court has cautioned against invoking laches to bar legal relief. See Holmberg v. Armbrecht, 327 U. S. 392, 395, 396 (1946) (in actions at law, “[i]f Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of thematter,” but “[t]raditionally . . . , statutes of limitation are not controlling measures of equitable relief ”); Merck & Co. v. Reynolds, 559 U. S. 633, 652 (2010) (quoting, for its current relevance, statement in United States v. Mack, 295 U. S. 480, 489 (1935), that “[l]aches within the term of the_statute of limitations is no defense [to an action] at law.”); County of Oneida v. Oneida Indian Nation of N. Y., 470 US 226, 244, n. 16 (1985) (“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”)

 The holding that laches cannot be used as an equitable defense within the period of the statute of limitations was made by only six of the Justices; the remaining three, who sit at the conservative end of the bench, disagree, stating:

[Laches] applies in those extraordinary cases where the plaintiff “unreasonably delays in filing a suit.” National Railroad Passenger Corporation v. Morgan, 536 US 101, 121 (2002), and, as a result, causes “unjust hardship” to the defendant. Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 236 (CA6 2007) (emphasis deleted). Its purpose is to avoid “inequity.” Galliher v. Cadwell, 145 US 368, 373 (1892). And, as Learned Hand pointed out, it may well be

“inequitable for the owner of a copyright, with full notice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success.” Haas v. Leo Feist, Inc., 234 F. 105, 108 (SDNY 1916).

Today’s decision disables federal courts from addressing that inequity.

In this case, I actually agree with the majority’s decision. I agree with Learned Hand’s comment that it’s not nice for a copyright holder to let the proposed infringer take the risk then swoop in to reap the rewards, but that is not what happened here. Raging Bull came out in 1980. MGM invested heavily in the film in the late 1970s and early 1980s. While yes, they still market the film today and they market it based on new technologies, the marketing expense has decreased dramatically because of the film’s popularity, awards status, and fame. Really, all MGM has to do is produce the film on a new technology and sales are virtually guaranteed. Also, Petrella does not seek damages for infringement that may or may not have occurred in the 1980s, 1990s or even the early 2000s; her suit seeks damages only within the confines of the statute of limitations, which I think moots the dissent’s quote of Judge Hand.

We certainly do not want to impose an unneeded inequity on any defendant, but I don’t think this decision does that. The inequity of delay is addressed through the statute of limitations. There is a time-certain period outside of which a defendant cannot be successfully sued. That limitation is placed on the plaintiff by statute. Today’s decision does not allow a plaintiff to sue outside of the statute of limitations, which keeps the delay to a minimum.

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Who Owns the Posting

Suppose you run an internet site that accepts postings from users. Suppose some of those postings are pretty good. Users voluntarily and without payment post to your website.

Who owns the postings?

The answer to this question depends on the Terms of Use on your website and how users access your site.

The author of the posting owns the original copyright in his or her posting. For the website owner to obtain copyright in the author’s posting, there needs to be a written transfer of copyright interest, which can be done with a “click-through” contract for users to access the posting capabilities of the website. It has to be worded correctly, though; this is not a do-it-yourself opportunity. You need your copyright lawyer to draft this clause for you.

Creating the click-through contract does NOT give copyright to the website owner for materials posted before the website requires the click-through contract to access the web posting capability transfers copyright. For those postings, if the website owner wants copyright ownership, the website owner must obtain and register with the US Copyright Office a signed document transferring copyright from the original author of the post.

If the postings can be published as a “collection,” then the website owner may — MAY — own the copyright in the collection, depending on several factors.

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Copyright a Chilean Note

The author who said, “estamos bien en el refugio los 33” has registered a copyright on the phrase.

So what, you ask?

That phrase, written in red ink, announced to the world that the trapped Chilean miners were alive and well down there in the broken mine.

That copyright registration has some pretty interesting ramifications.

First, it’s a very (very) short work of authorship; in the USA, one sentence very, very rarely, if ever, qualifies for copyright registration. Senor Ojeda registering his sentence, it seems to me, is something like Capt. James Lovell registering “Houston, we have a problem.” Are we seeing a muddling building between copyright and trademark?

Second, you know there will be movies made about this incident. If the copyright on the note is registered, the moviemakers will have to pay a chunk of money to license the use of the text for their movies, at least for those movies distributed in Chile. If an “author” can register copyright on essentially a tagline, it looks like Chile might be redefining the concept of “authorship.” After all, how much creative thought goes into the statement of the fact that all 33 miners are safe in the mine?

What does the registration of what is essentially a tagline under copyright bode for the future of copyright?

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The Lion Sleeps Forever

The Lion Sleeps Tonight by The Tokens George David Weiss of The Tokens, the group that brought The Lion Sleeps Tonight to worldwide fame, died yesterday.

I always thought that The Tokens had written the song. Turns out I was wrong. The tune was written by a Solomon Linda, who lived outside of Johannesburg. He sold the rights to his song to a movie for less than $1. That tune went on to make millions, but the songwriter died in squalor. He was so destitute at the time of his death in 1962 that his wife couldn’t afford a headstone. Meanwhile the song was raking in millions of dollars for the copyright holder.

Mr. Linda’s estate sued the copyright holder in 2000, and the copyright holder agreed to pay royalties on the song retroactive to 1987. There was really no reason for the copyright holder to agree to share the wealth with the songwriter’s estate. The copyright had been sold in 1952, before the song came into its own. The purchase and sale transferred the rights to the song to the purchaser. It was really very decent of the studio to agree to share the wealth. It was, in fact, the right thing to do.

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Salinger v. Colting Is Making Its Impact

This case is about copyright and the burden of proof to obtain an injunction in the Second Circuit.

Up until this case came down in April 2010, the courts in the Second Circuit held just about automatically that a preliminary injunction should be granted when a copyright holder claimed irreparable damage. This is one of the features of second-circuit case law that made it so very popular with plaintiffs; most circuits hold that the test for a preliminary injunction is that “[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange, LLC, 547 US 388, 391 (2006).

In Salinger, the Second Circuit holds that the law of eBay, a patent infringement case, specifically applies to copyright cases.

So what does this mean for the average copyright holder? It means that, to obtain a preliminary injunction in the Second Circuit, a plaintiff must show that:

(1) it has suffered an irreparable injury; accomplish this by showing that defendant has infringed copyright, thereby depriving plaintiff of benefits other than money that are available to it under the copyright law.

(2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; accomplish this by showing that the damage done cannot be fixed by throwing money at the problem.

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; show this by showing that plaintiff suffers more harm through the lack of a preliminary injunction than defendant suffers under a preliminary injunction.

(4) that the public interest would not be disserved by a permanent injunction; show this by showing how the plaintiff’s case advances the public interest in maintaining a bundle of rights exclusive to copyright owners.

This is a much higher standard of proof than previously existed in the Second Circuit for preliminary injunctions in copyright matters. It remains to be seen whether the additional burdens of proof will impact the number and quality of preliminary injunctions issued in the Second Circuit.

Stay tuned….

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Viacom v. YouTube

Analysis Of Google And Viacom’s Arguments Over YouTube: A Lot Of He Said/She Said | Techdirt is a nice analysis of the Viacom v. Google copyright infringement suit as it currently stands. The article leans heavily toward Google’s side of the argument.

Viacom vs. YouTube Unsealed! YouTube’s Steve Chen on Copyrighted Content: ‘Steal It!’ is a nice analysis of Viacom v. Google. The article leans heavily toward Viacom’s position.

This case tests the Title II of the Digital Millenium Copyright Act (DMCA), the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides ISPs with a “safe harbor” from a copyright infringement suit provided the ISP follows the guidelines. In the current case, Viacom, a motion picture studio that has produced many popular films, has sued YouTube, an ISP that hosts user-posted video content, some of which is taken directly from Viacom’s movies. YouTube is using OCILLA to say it has no responsibility to Viacom after following the statutory guidelines.

The question is whether YouTube actually followed the safe harbor guidelines. To get to that answer, the case must determine just how much knowledge of infringement on the part of the ISP is too much knowledge. Should YouTube, sua sponte, have taken down the copyrighted materials even before Viacom complained to them about the infringement by YouTube users?

The two blog posts cited here give you the summary judgment motions of both parties

Me, I tend toward Viacom’s side in this one. The presence of what I know to be copyrighted materials on YouTube has always bugged me.