Pure Imagination

ARTIST ALERT: Re-broadcasting a televised event is considered a public performance, and without permission it is considered a violation of the “event’s” copyright holders.

Clicking on the highlighted title leads to slightly deeper detail on the copyright listing. Clicking further on the highlighted texts will give slightly more detailed information about the registered work, however there are no links to the actual work itself. [3]  The Copyright Office only allows the actual works to be reviewed in-office (in the form of the original application), and does not allow reviewers to take copies home without written authorization from the copyright holder.  Additionally, there is a retrieval fee associated with viewing access. The retrieval fee is $100 per hour for applications that were filed online; the retrieval of applications filed any other way cost $200/hour (requiring a 2 hour minimum).  For a the entire fee schedule, click here. [4]  In order to schedule a time to inspect a copyrighted work, you can send a written request to [email protected], with the works’ registration number.  If you do not have the number, describe the type of work, the year it may have been copyrighted or published, and the author. [5]  Once you send an email the Office sends an estimate of cost before actually performing the search. You can also request for an estimate on the search via the website here. If you decide to go forward with your request, the office will pull the works and prepare them for your review upon visiting the copyright office. Sadly, the office cannot search for an image using a mere description of the work- so you must know the author or title, and the medium of the work at the very least (song, painting, photograph, video, etc…).  Note that the less specific your search terms are, the longer the list of copyrighted works that may be a match, and the larger the retrieval fee you may incur. For additional information about the Copyright research process, and for a paper retrieval request form: How to Investigate the Copyright Status of a Work (Circular 22)

The Hollywood Reporter recently published a story on how Usher and Justin Beiber were sued over their song “Somebody to Love.”  Usher and Beiber won: the claims were dismissed with prejudice in an eleven page opinion granting the defendant’s Motion to Dismiss. The plaintiff made several arguments claiming that Beiber’s song stemmed from the same lyrical content and theme as the original song they presented. First, the works are considered intrinsically similar if the intended audience could determine that the works are substantially similar.   In the opinion, the judge reasoned that the audience is the general public, and that they would not find the songs similar enough to evoke infringement.  Additionally, the judge explained that, extrinsically, the mood, tone and subject matter of the songs are different from one another, therefore a jury would not likely conclude that the public would see them as similar.  The lyrical content argument was not enough. Copyright Infringement isn’t always about direct copying; claims can arise out of correlations through relationships and similarities.  However, because similarity in art can be highly subjective, the Courts often weigh the perspective of the public when it comes to evaluating what is considered similar enough to be infringing. This ruling clearly illustrates that an idea alone isn’t protected, only the expression.

The Creative Commons co-founder launched legal proceedings against Melbourne-based Liberation after the label issued a “take-down” notice to YouTube demanding a video on one of his lectures be removed. The lecture contained the recording of the Phoenix song “Lisztomania,” which Liberation represents in Australia and New Zealand. In a statement, Liberation Music says it agrees that Professor Lessig’s use of “Lisztomania” was both “fair use” under U.S. law and “fair dealing” under Australian law and the label pledges to amend its copyright and YouTube policy to “ensure that mistakes like this will not happen again.”

  In April 2011, S. Victor Whitmill, a tattoo artist, sued Warner Brothers (“WB”) over their unauthorized use of the famous tattoo he inked on Mike Tyson’s face.  Whitmill claimed that WB violated his copyright by prominently featuring the tattoo (“his art”) in The Hangover II.  While the case settled, it brought up the commonly ignored conflict between use and ownership between copyrights and trademarks. [caption id="" align="aligncenter" width="440" caption="This baby cannot use its face for commercial purposes without either covering that face tattoo or getting permission from Whitmill."][/caption] Copyright protects original works of authorship, while a trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.  Therefore, you can have someone design a mark that you plan to use for your business, but you may not have the right to actually further reproduce that mark without a license from the artist that created it. Moral of the story?  Unless you agreed, in writing, that your work is considered “work made for hire,” always copyright your work. The owner of the copyright is who ultimately decides how it will be reproduced.  Alternatively, if you plan to incorporate the work of an artist you hired for something beyond the creation and use of the original work, make sure it’s agreed, in writing, as a “work made for hire.” Read more about what a “work made for hire” is, click here.

Lets talk about Arthur Conan Doyle’s character, Sherlock Holmes. [caption id="" align="aligncenter" width="300" caption="Benedict Cumberbatch as Sherlock Holmes (BBC)"][/caption] In the UK, Copyright protection remains for 50 years after the death of the work’s author.  In the US, copyright protection depends on when, in the last century, a work was published and copyright notice was given.  In the case of Sherlock Homes, it’s relevant to know that anything published before 1923 is now in the public domain.  Most of the Sherlock Holmes stories were published between 1887 and 1917, with the exception of 10 stories published after 1922. When Arthur Conan Doyle died in 1930, his copyright in the UK was set to expire in 1980, and it did.  In the US, it seemed that Sherlock Holme’s was fully protected under copyright because part of the characters and stories were still validly protected.  However, the 7th Circuit recently ruled that just because part of the series of a particular character are protected, it does not provide blanket protection for the stories and character descriptions published in previous years. In other words, the Sherlock Holmes Characters and stories published before 1923 are a part of the public domain, and therefore any owners of the remaining Copyright cannot demand people who use those characters and story elements pay a licensing fee.   As for the 10 stories published after 1922?  They are still protected.  So while a new author can create a series of new adventures for Sherlock Holmes, they cannot utilize the story line or character elements introduced in the 10 protected stories. If you’re curious about the potential copyright protections for other works published in the US over the past century, take a look at this time-table.  Also, NPR published a great article with details about Sherlock Holmes status in the US public domain.  

Congress has asked The Copyright Office to review how the current law affects visual artists and suggest adjustments on resale royalty rights to protect future sales. For some artwork, like sculptures and original paintings, the primary financial benefit may be through the sale of the original work rather than multiple copies.  The creator may sell the work for significantly less money than a subsequent collector or other entities that are able to take advantage of the increase in value of the artwork over time.  Changes to the law may have a significant impact on the lives of artists and their families, particularly when it comes to the estates of an artist; as work can substantially increase in value after an artist’s death. [caption id="attachment_611" align="alignleft" width="452" caption="United States Copyright Office"][/caption]   [caption id="attachment_612" align="alignright" width="450" caption="United States Congress"][/caption]                                                                 “An artist resale royalty, or droit de suite as it is often called in Europe, provides artists with an opportunity to benefit from the increased value of their works over time by granting them a percentage of the proceeds from the resale of their original works of art.  The royalty originated in France in the 1920s and is in general practice throughout Europe, but is not part of current United States copyright law.” http://www.copyright.gov/docs/resaleroyalty/

Daniel Morel, a Haitian photographer, noticed his photos were distributed and sold by major news outlets without his permission or providing compensation, so he sued. The lawsuit took 4 years, but he was eventually awarded over $1.2 million. [caption id="attachment_605" align="aligncenter" width="900" caption="Photo by Daniel Morel"][/caption] The ruling reinforced photographers’ rights in the era of social media. "Like anything of value, people need to ask permission, give credit and pay fair compensation for those images…" -Mickey Osterreicher, General Counsel to the National Press Photographers Association. Read the NY Times story here.

According to the Federal Court: “The purpose of the Copyright Act is not to reward Authors, but to achieve progress in the arts and sciences, which is accomplished when the ‘Act encourages others to build freely upon the ideas and information conveyed by a work’…Progress is thus encouraged through the fair use doctrine.” (pg10, last paragraph). Read the actual opinion here.

The mural from the side of a Hollywood gas station known as “Flower Girl” by street artist Banksy was recently put up for sale at auction. [caption id="attachment_589" align="aligncenter" width="900" caption="UPDATE- Mural sold for $290k. Photo: AP"][/caption] The issues raised involving auctions of unsolicited/non-commissioned street art are two-fold:   First, the ability to authenticate graffiti can be challenging, and the subsequent valuation of any such art is questionable.  Secondly, even where an artist acknowledges having created the work to be auctioned, the income associated with any such sale will be attributed to the owner of the actual building, not the artist.

Most individual YouTube users who perform cover songs and post them on their channels pay neither license fees or royalties in connection with the copyrighted material they cover.  Instead, they hope to build as large a viewing audience as possible, with the hope of ultimately attracting ad revenue based  on the total views of these cover videos.  In retaliation and frustration, a group of music publishers have sued one of YouTube’s largest video suppliers for knowingly posting videos and, “willfully ignor[ing] their obligation to obtain licenses and pay royalties.” You can read more about the YouTube dispute it in the NY Times.

[caption id="attachment_632" align="aligncenter" width="432" caption="McGinley (left) compared to Gordon (right)"][/caption] When testing for substantial similarity, courts measure if the ordinary observer would consider the aesthetic appeal the same, and if the average lay observer would recognize the secondary work as being taken from the primary art.  Ultimately, it comes down to the total concept and overall feel of the new work in comparison the accused infringing work. [caption id="attachment_633" align="aligncenter" width="420" caption="A screen grab from McGinley’s Levi Commercial (left) and Gordon’s photo (right) "][/caption] Taking in the continuity of McGinley’s images and the Levi’s desire to appeal to “American Youth,” it is clear that the imagery can be described as greatly inspired by Gordon’s photography, and that parts of the work does copy her imagery.  However, “not all copying results in copyright infringement.”  The district court concluded that just because McGinley’s works may have been derivative and unoriginal artistically, most advertising is derivative in that sense; and that the side-by-side comparison of the photographs, “does not prompt an ordinary observer to regard the aesthetic appeal as the same.” [caption id="attachment_634" align="aligncenter" width="432" caption="McGinley (top) compared to Gordon (bottom)"][/caption] The case was dismissed in District Court, and the Appeals Court affirmed that decision in 2012, and in May 2013 the Supreme Court denied hearing a further appeal.

The “Happy Birthday” song requires licensing from a publisher to be used in film, tv and music recordings. Filmmaker Jennifer Nelson is suing Warner/Chapell, Inc. to cancel their copyright on the song “Happy Birthday.”  The case stems from Nelson’s documentary surrounding the song, “Happy Birthday,” and finding out that Warner demands a $1,500 licensing fee to include the song in her film. The argument hinges on the written publication of the song, melody and lyrics. Nelson argues that the song has been in circulation since the late 1800s as an adaptation to another titled, “Good Morning To ALL,” and therefore has always been in the public domain.  Her lawsuit demands that all prior licensing fees be refunded because they were obtained illegally. [caption id="attachment_557" align="aligncenter" width="600" caption="The lyrics and tune to "Good Morning To ALL""][/caption] Under US Copyright Law, anything published after 1923, with notice, and the copyright has been renewed, the copyright will last for 95 years after the publication date. If Warner prevails, the song will not be a part of the public domain until 2019 at the earliest. (assuming the original publishing date was 1924). HOWEVER, if “Happy Birthday” is considered published as a sound recording, US Copyright law directs that the recording is subject to state statutory and/or common law protection, and therefore, depending on the state it was published, the song may not fully enter the public domain until February 15, 2067. You can read the full complaint here. Click here review the timeline for copyright protection and release to the public domain.  

The state of New York strongly enforces their trademarked, “I ♥ NY” logo, and for good reason.  A story published by the New York Times highlights the state’s department of Economic Development and their diligence that caused one coffee shop to have to change their name and merchandise, or pay a licensing fee. But, why is it so important to continuously enforce a registered trademark? [caption id="attachment_547" align="aligncenter" width="383" caption="Clever attempts to play off the "I ♥ NY" logo to avoid infringement"][/caption] In trademark law there is something called a “defense of laches,” which allows an infringer to assert when a trademark owner inexcusably “sleeps on its rights,” and this delay is more harmful to the infringer than the owner of the mark. However, if an infringer intentionally violates a trademark in bad faith, or with an intent to confusingly deceive its purchasers, they cannot assert laches. Furthermore, while this defense can prevent monetary damages, it may not stop the court from granting injunctive relief (meaning the court can order the infringer to stop performing the infringing act); however, the amount of injunctive relief can depend on the how much the trademark owners’ unreasonable delay affects the infringer’s business. But all is not lost for trademark owners. Under the “doctrine of progressive encroachment,” a trademark owner is not required to enforce against every minor infringement.  An owner can reserve their right to sue for when infringement expands to the point of causing potential harm and confusion to the owner’s mark.  This can be difficult to enforce, however, because the courts will look at milestones along the path of a business over time and gauge the owner’s enforcement actions against that company’s growth. It’s true that not enforcing your mark can weaken it’s distinctiveness over time and can negate certain available remedies. So, at a minimum, owners need to show they maintain some level of proactive monitoring of their logo and its use in commerce in order to fully enforce their rights over time.