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?

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.

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….

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.

Scoff at copyright law at your peril…

More trouble ahead for copyright scofflaws – Ask the Editors | Tri-City Herald : Mid-Columbia news .

The RIAA cases may have ground to a slow halt, but that does not mean that the copyright laws are to be ignored.

The Associated Press v. All Headline News case in New York settled with an undisclosed settlement payable to AP for the unauthorized use of AP stories and headlines by All Headline News. This case stresses the doctrine, first established by the US Supreme Court in 1918, that facts cannot be copyrighted but “hot news” gives a publisher the right to sue and collect damages even on facts.

In Europe, publishers have renewed their outcry for tough copyright laws protecting written materials as the publishers consider that the internet may provide them with additional streams of revenue.

Remember, in the US, the only two factors in a copyright infringement suit that plaintiff must prove are (1) a valid copyright exists and (2) a substantially similar copy exists. That’s it. No intent need be shown. No money need change hands. Copyright infringement is strict liability land. And damages are stiff.

Ain't No Plagiarism in Harry Potter Says Publisher – Yahoo News

Ain’t No Plagiarism in Harry Potter Says Publisher – Yahoo News.

Hmm. Copyright infringement and plagiarism seems to be coming out of my ears these days. Here the plagiarism, if found, would be for the general plot line. Harry Potter fought in the Triwizard Tournament and rode the Hogwarts Express (a train); the claimant’s wizard was a hostage and rode a train. The claimant’s book is The Adventures of Willy the Wizard No. 1, Livid Land.

The grounds for copyright infringement in the US are: (1) a valid copyright, which the estate of Adrian Jacobs may indeed have; and (2) a SUBSTANTIALLY similar work, which is where I think the estate falls flat. Lots of characters are held hostage and ride on trains. Not so many characters are wizards, but surely a wizard riding on a train and getting into a hostage situation … plagiarism?? Harry does many, many things besides ride on the train and get into a hostage situation.

The Hogwarts Express entered the Harry Potter lexicon with the first book. So did Voldemort … and Voldemort took a hostage in the second book (a witch named Ginny Weasley). The fourth book,  which all the hoopla is about, was published in July, 2000. I will point out that it’s now 2009; the book has been around for awhile. Why the wait to sue, Plaintiff?

Seems to me that this is one of the more stupid lawsuits. Best wishes to Rowling defending this one; it shouldn’t be too tough to do.

Justice Dept. Seeks Details On Google Deal –

Justice Dept. Seeks Details On Google Deal –

After several years of fighting a large copyright issue, the GOOGLE v. Publishers and Authors suit settled out for about $125 million. The deal they struck is that GOOGLE gets to continue putting together its online library and the publishers and authors go away compensated for their copyright interests.

It turns out that it’s not that easy. In comes the US Justice Department. The DOJ is investigating the GOOGLE/publishers-and-authors deal with an eye toward finding an antitrust violation hidden somewhere in that deal.

It is true that the deal would make GOOGLE the leading online source of books — after all, it ain’t Yahoo scanning in those millions of titles from the large repositories. However, there is nothing that I know of in the deal to prevent Yahoo, or anyone else, from also reaching a deal with the authors and publishers and scanning in the works to compete with GOOGLE; GOOGLE just happens to be the first kid on the block to come up with this notion. This is a deal that was reached between these particular litigants to allow a project that could be of significant benefit to the whole world to go forward.

Now, I’m sure there’s something here that I don’t know about, but antitrust? Where’s the restraint of trade?

Facebook Repeals Copyright Plan – I4U News UK

Facebook Repeals Copyright Plan – I4U News UK.

The Public Has Spoken.

Facebook put new Terms of Service into effect on its website a couple of weeks ago. Those terms basically said that Facebook has a royalty-free license forevermore to use for any purpose anything that any user posts on the site.

The users roared loudly enough to get the Facebook IP lawyers to listen. They’ve backed down on that one now.

Way to go, Facebook Users!

Apple: iPhone jailbreaking violates our copyright | Apple – CNET News

Apple: iPhone jailbreaking violates our copyright | Apple – CNET News.

Apple may be making a large mistake.

While the debate itself — whether “jailbreaking,” or enabling an iPhone to accept and use non-Apple apps, is copyright infringement — is intellectually interesting, at the end of the day Apple’s insistence that jailbreaking constitutes infringement could land it in deep water in terms of its market share and popularity with the public.

The recent public-relations fiasco that the Recording Industry Association of America (RIAA) brought down upon itself with its bulk lawsuits against infringing music downloaders is a case in point. Those lawsuits are absolutely supported by the copyright laws; however, the overzealousness with which they were pursued resulted in a steep drop in RIAA’s credibility. I have clients, friends and acquaintances who now pay close attention to music labels and boycott the RIAA because of these lawsuits. RIAA woke up and has stopped the wholesale suing of individuals who download their copyrighted music (they enforce through ISPs now … it’ll be interesting to see if/how that works).

Apple’s refusal to open up its technology so that others can develop and distribute applications has landed it in the Unpopular pile before. It lost the battle for supremacy in the marketplace for its computers through this policy; that’s too bad, too, since Windows is a pale imitation of the Mac interface. I guess Apple didn’t learn its lesson.

The iPhone is a Cool Gadget, but it is not the only Cool Gadget out there; other phones, with similar prices but more permissive licenses, distinctly outrank the iPhone in sales. And that would be because … ? Oh. Right. Users can get software from anywhere for their phones without jailbreaking.

Wake up, Apple, and smell the coffee. Sharing Is Good and Helps Maintain Market Share. I’d hate to see you go under through misguided and overzealous protection of your IP.

And this comes from a copyright lawyer who uses a Mac. But not an iPhone.

The Obama Image



Obama Hope Image Subject of Fair Use Lawsuit


No, I’m not going off-topic again; I’ve gotten over it.

We’ve all seen the image of President Obama, and by now we all know where that image came from — a photo taken by AP photographer Mannie Garcia in 2006, munged into the Hope poster by Shepard Fairey and used throughout the Obama campaign.

17 USC 107 controls fair use under the copyright law of the US. Was the use of the AP picture in the Hope poster fair use under the law? That’s what the US District Court for the Southern District of New York (SDNY) has been asked to determine. The AP has sued Fairey in the copyright court — the SDNY, sitting in New York City is in the heart of the publishing industry, the SDNY has a lot of copyright jurisprudence to guide it in making such a decision.

Fair use is a gray area of the law, at best. The statute, ever so helpfully, gives us a test that can be applied to questions of fair use, but at the end of the day it’s the judge’s sense of justice that determines the outcome of the case.

It will be interesting to see where this case goes. The Hope poster is political speech, probably the most protected speech under the First Amendment; the image, though, is clearly a derivative work of the AP photo.

Who will win? Who can tell?