Musicians Oppose Changes in Copyright Laws to Make Sampling Easier

Aerosmith lead singer Steve Tyler has spoken out against a proposed change in US copyright law that would require musicians to let others create derivative works of their songs.

These derivative works would include samples, mash-ups, and remixes.

Unauthorized sampling is common in the music industry.  Record Label TufAmerica Inc. recently filed a copyright infringement lawsuit claiming that FrankOcean’s “Super Rich Kids” included an unauthorized sample of Mary J. Blige’s 1992 song “Real Love.”

TufAmerica does not own the Blige song, but it does own a 1973 song “Impeach the President” that Blige samples in her song.

Tyler’s comments, along with those of his attorney, were submitted in response to a request in a US Department of Commerce green paper on copyright policy.

One of the changes suggested was the creation of a compulsory license that would allow musicians to remix the works of others by paying a flat fee.  Cover versions of songs are now handled in this manner.

Tyler said that such a compulsory license would force artists to allow their music (or other works) to be associated with messages and causes that the artist objects to.  He said the compulsory license might allow someone to use a sample of music by Melissa Etheridge (a lesbian) in a song containing homophobic slurs, or could allow someone to use a song by gun-ownership-advocate Ted Nugent in a work promoting gun control.

Other musicians opposing the change include Deadmau5, Don Henley, Sting, and Joe Walsh.

The green paper resulted from hearings in May in the House Judiciary Committee’s intellectual property subcommittee to consider the modernization of US copyright law in the wake of technological advances in computers and digital media.

The last extensive revisions of US copyright law were in 1976, before the advent of the Internet and the PC.  Subsequent amendments have been piecemeal, including the Digital Millennium Copyright Act of 1998, which focused on digital rights management, anti-circumvention, and “safe havens” for Internet service providers.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.


Lions Gate Files Copyright and Trademark Counterclaims over Twilight Spoof

Lions Gate Entertainment Corp. has filed copyright and trademark counterclaims against the producers of a Twilight parody film.

The Twilight movie series, based on the hyper-popular novels by Stephanie Meyer, was produced by Lions Gate subsidiary Summit Entertainment and has earned over $3.3 billion worldwide.

Between the Lines Productions LLC, producers of the spoof film Twiharder, had previously sued Lions Gate for antitrust violations.  The 219-page complaint charged that Lions Gate and Summit engaged in “ridiculous-to-insane overreaches of intellectual property law.”

The Lions Gate counterclaim alleges that the Between the Lines “use of the ‘Twilight’ motion pictures … in the absence of a valid license agreement …. would constitute copyright infringement.”  It also includes state and federal causes of action for trademark infringement, false designation of origin, unfair competition, and trademark dilution.

Between the Lines has claimed that several major distributors had expressed interest in distributing Twiharder, but that they immediately lost interest after Between the Lines received a “cease and desist” letter from Lions Gate.  The film’s budget is estimated at $3 million.

The antitrust complaint alleges that Lions Gate tried to “monopolize the conversation” about Twilight via “oppressive” IP enforcement using “sham” cease-and-desist notices.

Lions Gate and its subsidiary Summit Entertainment have sought to have the antitrust case dismissed.

According to the Urban Dictionary, “Twihards” are “Stupid obsessive people (mostly teenage girls) who are ‘in love’ with fictional characters and wouldn’t know a good book if it punched them in the face.”

The dispute will likely turn on the issue of whether Twiharder constitutes a “parody,” which is considered “fair use” under US copyright law and thus not copyright infringement.

Courts distinguish between parodies (which poke fun at the work being parodied) and satires (which use elements of a copyrighted work to poke fun at something else).  Parodies are more likely than satires to be considered fair use.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Music Companies Say Grooveshark Destroyed Records in Copyright Case

Music companies involved in litigation against Grooveshark have asked a federal judge to sanction the music streaming service’s owner for destroying records the plaintiffs say would have shown the extent to which Grooveshark engaged in copyright infringement.

Universal Music Group (UMG), Warner Bros. Records, and Sony Music say that Escape Media Group Inc., which owns Grooveshark, destroyed records even though copyright infringement litigation was pending.

Grooveshark’s on-demand music streaming service allows users to listen, for free, to songs from a playlist of more than 15 million tracks.  The company’s revenue model is based on advertising.

UMG initially sued Grooveshark in New YorkState court in 2011.  In April, 2013, a New York court of appeals ruled against Grooveshark for its posting of pre-1972 song recordings, including songs by Buddy Holly and Chuck Berry.  The New York court concluded that the music was not covered by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA, under some circumstances, shields internet service providers from copyright infringement liability if they promptly remove copyrighted works from their websites when asked to do so by the copyright owners.

Grooveshark has agreements with owners of many sound recordings, but also allows its 35 million users to upload songs.  Thus, it cannot be certain that all of its content is non-infringing.

Some artists, including Robert Fripp of King Crimson, have complained that their music remained on Grooveshark despite several takedown notices.  Music label executives said that they had sent hundreds of thousands of takedown notices to Grooveshark only to see the songs reappear within seconds.

UMG and the other plaintiffs also sued Grooveshark in federal court, saying that the service engaged in copyright infringement on a large scale.  The suit cited emails from Grooveshark executives that appeared to boast of “achieving all this growth without paying a dime to any of the [music] labels.”

If Grooveshark and its executives are found guilty of willful copyright infringement, the maximum penalty could be $150,000 for each work infringed.

The plaintiffs claim that missing information includes evidence of Grooveshark’s Chief Technology Officer’s uploads, even though the plaintiffs demanded that these records be maintained.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Supreme Court Hears Arguments in Raging Bull Copyright Case

The US Supreme Court has heard oral arguments in a copyright case involving movie studio Metro-Goldwyn-Mayer Inc. (MGM) and the daughter of Frank Petrella.  Mr. Petrella was the author of a 1963 movie script called “The Raging Bull.”

At issue is the doctrine of “laches” – an “unreasonable delay pursuing a right or claim…in a way that prejudices the [opposing] party.”  The doctrine bars a plaintiff from suing if he or she “sleeps” on his or her rights.

Paula Petrella has asked the Supreme Court to overturn a ruling by the Ninth Circuit that she was barred by laches from suing MGM for infringing the copyright in her father’s script, upon which the 1980 United Artists movie Raging Bull was allegedly based.

Frank Petrella had also collaborated with Jake LaMotta, the boxer who is the subject of the film and who wrote the 1970 memoir Raging Bull: My Story.

Frank Petrella died in 1981, a year after the movie was released.  Under a 1990 Supreme Court case involving the Alfred Hitchcock movie Rear Window, when an author dies before the copyright renewal term ends, the author’s heirs can claim the author’s copyright renewal rights.  Ms. Petrella did this for her father’s work.

Ms. Petrella became aware of a potential copyright claim for her father’s work in 1991, but did not sue until 2009.

The US Copyright Act has a three-year statute of limitations, which means that Ms. Petrella would have a theoretical claim to damages going back to only 2006.  However, a lower court didn’t allow her to even make that claim, due to her delay in bringing suit.

MGM and other studios are concerned that without the doctrine of laches plaintiffs could file copyright claims any time a movie or TV show is released in a new format.

MGM made a major investment in promoting Raging Bull for the movie’s 25th anniversary re-release in 2005.  The studio claims that the movie does not have a “substantial similarity” to Frank Petrella’s screenplay and thus does not infringe his copyright.

MGM’s attorney told the Supreme Court that the film “still has never made a profit” for the period at issue.

If you believe you may have a claim for copyright infringement, it’s important to bring a claim promptly in order to avoid losing your rights or minimizing your damages.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Prince Drops $22 Million Copyright Suit against Bloggers

Pop music star Prince, known for hits such as “1999” and “When Doves Cry,” has dropped a copyright infringement lawsuit against 22 bloggers and Facebook users only weeks after he filed it.

He had sought $1 million in damages from each defendant.  He claimed the defendants had directed others to sites where they could find bootleg recordings of his performances.

Most of the defendants were identified only by online names such as “World of Bootleg.”  Causes of action included both copyright infringement and contributory copyright infringement.

According to the complaint, the defendants

…typically publish posts that list all the songs performed at a certain Prince live show and then provide a link to a file-sharing service where unauthorized copies of the performance can be downloaded.

Some of the sites were general-purpose bootleg sites, offering a wide range of intellectual property for illegal downloads.  Some of the sites were fan pages.

The suit was dropped “without prejudice,” meaning that Prince could revive the claims at a later date.

Online piracy is continuing to grow, despite the availability of legal downloads and streaming from sources like iTunes, Pandora, and Netflix.

Bandwidth used for copyright infringement grew 160% from 2010 to 2012, according to a study from NetNames, a British brand protection firm, which says 24% of all Internet bandwidth is used for piracy.

According to the same report, 327 million unique users sought pirated content in January of 2013.

Serious law enforcement activity against pirate sites and their users is rare.  However, in June of 2013 three brothers from Fremont, California were arrested on grand theft charges and face up to five years in prison for running a site that allowed users to watch pirated movies and television shows.

Most anti-piracy cases are civil copyright lawsuits brought by artists like Prince, entertainment and software companies, and trade groups like the Motion Picture Association of America.

An effective anti-piracy program can both deter infringers and potentially recover significant damages for a copyright owner.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Ninth Circuit Revives Copyright and Trademark Claims by Heirs of Bill Graham

The Ninth Circuit has revived a case involving copyrights and trademarks associated with the late Bill Graham.

Graham, who was born in Berlin, escaped Germany and France during the Second World War and lived as a foster child in the Bronx.  He moved to San Francisco in the early 1960s and got his start as a promoter by organizing a benefit.

He presented concerts at the Fillmore Theater in San Francisco and worked with performers including Jefferson Airplane, the Rolling Stones, and the Grateful Dead.

He died in 1991 in a helicopter crash near Vallejo, California, on his way home from a Huey Lewis and the News concert.

His will created trusts for his sons, who were 14 and 23 at the time of his death.  The executor of the will and the trustee was Nicholas Clainos, Grahams’s friend and business partner.

In 2010, 15 years after the probate court had made the final disposition of Graham’s estate, Graham’s sons sued Clainos, his attorneys, and the Bill Graham Archives.  Graham’s sons claimed that they had been cheated out of hundreds of valuable rock concert posters and the copyrights associated with those posters.

Graham’s sons also claimed that Clainos and his attorney had “concealed and converted” the rights to “The Fillmore” trademark.

Graham’s sons claim Clainos and his attorney had assigned the poster rights to a new subsidiary of Bill Graham Presents in a document dated August 31, 1995, and then backdated that document to August 1, before the probate case closed.  Clainos became the subsidiary’s largest shareholder, according to the complaint.

A federal district court dismissed the claim against Clainos but the Ninth Circuit reversed and remanded, holding that the plaintiffs had pled facts sufficient to show that assignment was not effective and thus that they had a legitimate claim to the copyrights for the posters.

Some of the concert posters, including the one above, were published without copyright notices before 1977 and thus are now in the public domain.

For works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years.  Thus, an author or artist can bequeath copyrights (and the associated royalty streams) to his or her heirs after death.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Bloomberg’s Use of Recording of Swatch Earnings Call Was Fair Use

The Second Circuit Court of Appeals has ruled that Bloomberg’s unauthorized publication of a recording of an earnings call was fair use under UScopyright law.

The case involved an earnings call for the Swatch Group, the watch company, which is traded on the Swiss stock exchange.

In February of 2011, Swatch hosted a telephone conference and invited hundreds of securities analysts to discuss the company’s financial performance.  Swatch arranged with a third party transcript service to record the call.

Swatch asserted that the recording was “an original work fixed in a tangible medium” and thus that it qualified for copyright protection. The company registered the recording with the US Copyright Office.

Bloomberg obtained an unauthorized copy of the recording and made it available via its news service.  Swatch asked Bloomberg to remove the recording.  When Bloomberg refused, Swatch sued for copyright infringement.

A district court granted summary judgment for Bloomberg, finding fair use as a matter of law.

The Second Circuit affirmed, finding that the first fair use factor – “the purpose and character of the use” – favored Bloomberg.

The court accepted that Bloomberg was a “commercial enterprise” providing information to paying users, and that it had obtained the recording using “clandestine methods.”  The court held that whether or not Bloomberg’s service was providing “news” or something else, publishing the Swatch recording provided an important public service in disseminating “newsworthy financial information.”

Although Bloomberg had obtained the recording without Swatch’s authorization, the court held that dissemination of information “would be crippled if the news media and similar organizations were limited to authorized sources of information.”

The court also held that Swatch’s copyright interest in the recording was “thin,” given its factual nature.

The court noted that Bloomberg’s publication of the call did not deprive Swatch of any revenue.  Bloomberg merely “widened the audience of the call, which [was] consistent with Swatch Group’s initial purpose.”

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9th Circuit Tells YouTube to Remove Anti-Muslim Film Based on Copyright Violation

The 9th Circuit Court of Appeals ordered (owned by Google) to remove the 14-minute film trailer The Innocence of Muslims from its site.

The Court of Appeals reversed a decision by a federal district court that denied an injunction sought by Cindy Lee Garcia, an actress who appeared in the film for only about five seconds.

Garcia had sued YouTube, Google, and Naloula Basseley Nakoula, the film’s producer, among others.

Garcia had been cast in a minor role in a film with the working title Desert Warrior, a historical adventure with no religious content.  She received $500 for three-and-a-half days of work.

However, Desert Warrior was never released.  Instead, Garcia’s performance was used in a trailer for The Innocence of Muslims.  (A full-length film by that name apparently does not exist.)

Garcia learned how her performance had been used when the trailer was uploaded to YouTube.  Her lines had been partially dubbed over so that she appeared to be asking a question highly offensive to Muslims.

When Egyptian television aired segments of the trailer in 2012, violent protests broke out in several countries in the Middle East and Northern Africa, leading to dozens of deaths.  Garcia began receiving death threats after an Egyptian cleric called for the death of anyone associated with the film.

According to Judge Alex Kozinski of the 9th circuit, “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa.”

Kozinski wrote that Garcia was duped into providing a performance that was used in ways she could not have foreseen, leading to threats against her life.

The 9th Circuit held that the filmmakers had likely exceeded any implied license to use Garcia’s performance.

Google argued that Garcia’s “didn’t make a protectable contribution to the film” that would allow her to make a copyright infringement claim.  Google noted that Nakoula wrote the dialogue that Garcia spoke, managed the production, and dubbed over Garcia’s scene.

YouTube and Google contended that granting Garcia’s request for an injunction before deciding whether Garcia actually had a protectable copyright interest in the film was an unconstitutional prior restraint on freedom of speech.

The 9th Circuit responded that the First Amendment does not protect copyright infringement.

The district court had ruled that Garcia could not claim to be an author of the film and thus could not establish copyright ownership.  One member of the three-judge Circuit Court panel agreed, saying that Garcia’s performance was not a “work” protected by copyright law and that she was not an “author” of the film.  The two other judges on the panel disagreed.

Although Garcia only asked for her own performance to be removed from the trailer, the 9th Circuit ordered the entire trailer taken down.

Google issued a statement that it strongly disagreed with the ruling and would fight it.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

US House of Representatives Considers Copyright Protection for Standards

The House Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet held hearings on whether privately developed safety standards later adopted as law can be protected by copyright.

Private organization such as the American National Standards Institute (ANSI) develop voluntary consensus standards for products and services in the United States, and coordinate US standards with foreign standards so that US products can be used all over the world.

The federal government often applies these voluntary standards in laws and regulations, as do local and state governments.

Some standards organizations have sought to exercise control over their standards under copyright law, even after the standards become part of the law.

Works of the US government, as well as those of state and local governments, are excluded from copyright protection and are in the public domain.  Building codes, for example, are in the public domain and may be freely copied by anyone.

At the recent hearing, the general counsel for ANSI noted that industry groups spend time and money to create complex systems of standards and that they would be unable to continue making this investment without the ability to charge for this content.

“If the government were to take that process away,” she said, “the government would have to provide that expertise … and ultimately the taxpayers would have to pay for that.”

The founder of Public.Resource.Org, a non-profit group that favors free online access to legal codes, testified that charging for access to laws was contrary to “a fundamental principal of our democracy.”

He said, “That the law has no copyright because it’s owned by the people is a principal that has been repeatedly reaffirmed by the courts.”

California Congresspeople Darrell Issa and Zoe Lofgren expressed their concern that citizens should have free access to the laws that they must live under.

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Circuit Court Revives “KC and The Sunshine Band” Copyright Case

The 11th Circuit Court of Appeals has reversed a lower court’s decision barring the heirs of a former member of KC and the Sunshine Band from bringing a copyright suit over royalties for the song “Spank.”

The case was filed in Florida by the heirs of late band member Ronnie Smith.  Smith died in 2012, and his estate claimed that Harry Wayne Casey, the founder and front man for the Sunshine Band, had failed to make royalty payments due to Smith.  The plaintiffs sought over $250,000 in damages.

The lower court had dismissed the case, on the grounds that Smith’s record label registered the copyright for him and thus that Smith (and therefor his heirs) lacked standing to sue for copyright infringement.

The Circuit Court said that Congress intended for composers of works owned by third parties to be able to sue for infringement, even if the third parties filed the copyright applications.

Under US copyright law, the author of a work such as a song may transfer some rights to a copyright owner (such as an employer or record label) while retaining a “reversionary interest” in the copyright.  Thus, an author can be the “legal” owner of a copyright while a third party can be the “beneficial” owner of the same right.

According to the 11th Circuit,

Were we to … hold otherwise, redundant registrations would be necessary for statutory standing purposes every time legal and beneficial ownership of the same exclusive right rested with two distinct parties, even if they joined together in filing suit against an alleged infringer.

The case will now go back to the lower court for a decision on whether the additional royalties are due to Smith’s estate.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.