The Cook, the Thief, the Lover, and the Wife . . .

That was a marvelously strange movie, years ago, with a wonderful title, written as bald allusion to British politics and Maggie Thatcher. The movie was a failure, despite some stunning visuals, but did present the question of who was responsible. And that's the issue in copyright today.

The Cook? Those who provide technology or software that facilitates copyright infringement. In our recent history, what became the VCR and allowed copying of video for use when we wanted, a precursor to Tivo and DVR's, raised the question of copying for personal use without paying a license fee (even though some copying was obviously not for personal use, but for replicating for others). At one one time the Lover, the content providers like movie and recording studios, opposed the use of VCR's without payment to them, a rather luddite approach. The Cooks today are file sharing services and internet providers and others who provide new technology that facilitate copying.

The Thief? Usually a child or youth or student or young adult who just wants his or her content, and sees an opportunity to get it inexpensively. This is a candy store, and few of the thieves see themselves as stealing.

The Wife? The Court system, who has to sort this mess out. And the primary wife is the Ninth Circuit, the home of the industry seeking protection. One article explains the current conundrum:

The most prominent lawsuits have been brought against vendors of peer-to-peer file sharing software—Napster, Aimster, and Grokster—who have been held liable under the judicial doctrines of vicarious liability and contributory infringement for the copyright violations committed by their users. Although these secondary liability doctrines are well established in copyright law, the Napster and Aimster decisions have expanded the role that illicit intent to profit from others’ copyrighted works plays in determining liability. The expanded scrutiny of intent makes it difficult for developers of copying and distribution technologies to predict their potential liability and undermines the limited immunity for the development of useful technologies that the Supreme Court established in its Sony decision.

Sverker K. Hogberg, Columbia Law Review, http://www.columbialawreview.org/pdf/hogberg.pdf.

So, what approaches are being used? My bias is simple: the economic consequences of the law must be evaluated, and the legal rules that promote the most benefit for society chosen. This is quite different than a "property law" analysis urged by copyright owners; but, copyright law already imposes blanket licenses at times.

We'll think more about this in coming days.

The Cook, the Thief, the Lover, and the Wife . . .

That was a marvelously strange movie, years ago, with a wonderful title, written as bald allusion to British politics and Maggie Thatcher. The movie was a failure, despite some stunning visuals, but did present the question of who was responsible. And that's the issue in copyright today.

The Cook? Those who provide technology or software that facilitates copyright infringement. In our recent history, what became the VCR and allowed copying of video for use when we wanted, a precursor to Tivo and DVR's, raised the question of copying for personal use without paying a license fee (even though some copying was obviously not for personal use, but for replicating for others). At one one time the Lover, the content providers like movie and recording studios, opposed the use of VCR's without payment to them, a rather luddite approach. The Cooks today are file sharing services and internet providers and others who provide new technology that facilitate copying.

The Thief? Usually a child or youth or student or young adult who just wants his or her content, and sees an opportunity to get it inexpensively. This is a candy store, and few of the thieves see themselves as stealing.

The Wife? The Court system, who has to sort this mess out. And the primary wife is the Ninth Circuit, the home of the industry seeking protection. One article explains the current conundrum:

The most prominent lawsuits have been brought against vendors of peer-to-peer file sharing software—Napster, Aimster, and Grokster—who have been held liable under the judicial doctrines of vicarious liability and contributory infringement for the copyright violations committed by their users. Although these secondary liability doctrines are well established in copyright law, the Napster and Aimster decisions have expanded the role that illicit intent to profit from others’ copyrighted works plays in determining liability. The expanded scrutiny of intent makes it difficult for developers of copying and distribution technologies to predict their potential liability and undermines the limited immunity for the development of useful technologies that the Supreme Court established in its Sony decision.

Sverker K. Hogberg, Columbia Law Review, http://www.columbialawreview.org/pdf/hogberg.pdf.

So, what approaches are being used? My bias is simple: the economic consequences of the law must be evaluated, and the legal rules that promote the most benefit for society chosen. This is quite different than a "property law" analysis urged by copyright owners; but, copyright law already imposes blanket licenses at times.

We'll think more about this in coming days.

Attorney's Fees . . . Be Fair or Be Denied Attorneys' Fees in Copyright

The Copyright Act authorizes a court to award reasonable attorney’s fees to the prevailing party in a suit under the Act.

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

In Fogerty v. Fantasy, Inc., 510 U.S. 517, 534–35 (1994), the Supreme Court held that attorney’s fees should be awarded evenhandedly to both prevailing plaintiffs and defendants in copyright actions. But, the copyright attorney's fee rule is not the British rule, but one of discretion. Id., 10 U.S. at 534. The Supreme Court lists several non-exclusive factors that a court may consider in exercising its discretion: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”

In two recent file-sharing cases, where record companies are unmercifully attacking file-sharing users, often college students, courts have awarded fees and denied fees to defendants when the record companies have "the wrong guy." In a Texas case, a father pointed to his adult daughter as the responsible party, but waited over eight months in the litigation to do so. After dismissing the case, the Court refused to award attorney's fees because of the defendants delay in the prompt resolution of the lawsuit. Virgin v. Thompson

href="www.thelen.com/tlu/VirginVThompson.pdf"

But, successfully getting the record companyies' claims dismissed, with prejudice, without misbehavior, should result in attorney's fees. Atlantic v. Andersen

http://www.thelen.com/tlu/AtlanticVAndersenJan08.pdf

Attorney's Fees . . . Be Fair or Be Denied Attorneys' Fees in Copyright

The Copyright Act authorizes a court to award reasonable attorney’s fees to the prevailing party in a suit under the Act.

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

In Fogerty v. Fantasy, Inc., 510 U.S. 517, 534–35 (1994), the Supreme Court held that attorney’s fees should be awarded evenhandedly to both prevailing plaintiffs and defendants in copyright actions. But, the copyright attorney's fee rule is not the British rule, but one of discretion. Id., 10 U.S. at 534. The Supreme Court lists several non-exclusive factors that a court may consider in exercising its discretion: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”

In two recent file-sharing cases, where record companies are unmercifully attacking file-sharing users, often college students, courts have awarded fees and denied fees to defendants when the record companies have "the wrong guy." In a Texas case, a father pointed to his adult daughter as the responsible party, but waited over eight months in the litigation to do so. After dismissing the case, the Court refused to award attorney's fees because of the defendants delay in the prompt resolution of the lawsuit. Virgin v. Thompson

href="www.thelen.com/tlu/VirginVThompson.pdf"

But, successfully getting the record companyies' claims dismissed, with prejudice, without misbehavior, should result in attorney's fees. Atlantic v. Andersen

http://www.thelen.com/tlu/AtlanticVAndersenJan08.pdf

Even More Karoake . . .

Thank God copyright was invented to protect song owners against karoake. It appears that the karoake wars continue, and the battleground is the Ninth Circuit. Now the karoake record producers are suing each other and using copyright.

Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.

To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":

Under copyright law, only copyright owners and exclusive licensees of copyright may enforce a copyright or a license. See 17 U.S.C. § 501(b) (conferring standing only to the “legal or beneficial owner of an exclusive right” who “is entitled . . . to institute an action for any infringement . . . while he or she is the owner of it”); Silvers, 402 F.3d at 885. Therefore, third party strangers and nonexclusive licensees cannot bring suit to enforce a copyright, even if an infringer is operating without a license to the detriment of a nonexclusive licensee who has paid full value for his license. See 3-10 Melville B. Nimmer;David Nimmer, Nimmer on Copyright, § 10.02 [B] [1] (2007).

Does that really respond to the Plaintiff's theory?

The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:

Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.

That makes little sense to me.

Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.

Even More Karoake . . .

Thank God copyright was invented to protect song owners against karoake. It appears that the karoake wars continue, and the battleground is the Ninth Circuit. Now the karoake record producers are suing each other and using copyright.

Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.

To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":

Under copyright law, only copyright owners and exclusive licensees of copyright may enforce a copyright or a license. See 17 U.S.C. § 501(b) (conferring standing only to the “legal or beneficial owner of an exclusive right” who “is entitled . . . to institute an action for any infringement . . . while he or she is the owner of it”); Silvers, 402 F.3d at 885. Therefore, third party strangers and nonexclusive licensees cannot bring suit to enforce a copyright, even if an infringer is operating without a license to the detriment of a nonexclusive licensee who has paid full value for his license. See 3-10 Melville B. Nimmer;David Nimmer, Nimmer on Copyright, § 10.02 [B] [1] (2007).

Does that really respond to the Plaintiff's theory?

The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:

Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.

That makes little sense to me.

Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.

Karoake Law!!!!!!!!!!! It Costs More to Sing the Words.

It is just a matter of time before there is an opinion about most anything. Today's is karoake.

The U.S. Court of Appeals for the Ninth Circuit held that a compulsory license does not include the right to print or display song lyrics with the recordings. Leadsinger, Inc. v. BMG Music Publishing, Case No. 06-55102 (9th Cir., Jan. 2, 2008). So, how does karoake work?

From a copyright angle, BMG, here, the license owner, issues "compulsory mechanical licenses" to copyrighted musical compositions under § 115 of the Copyright Act. But wait; we need the lyrics, not just the song, for a karoake feast. So, in addition to the mechanical fee required for the compulsory mechanical license, BMG demanded that karaoke companies pay a “lyric reprint” fee and a “synchronization fee.”

The exclusive rights granted to a copyright author for "nondramatic musical works" to make and to distribute "phonorecords" of such works are subject to compulsory licensing. There are several different compulsory license provisions in copyright: nondramatic musical compositions, public broadcasting, retransmission by cables systems, subscription digital audio transmission, and nonsubscription digital audio transmission such as internet radio. Authors do not have every right under copyright law, and collective licensing systems have been mandated by Congress. Sadly for the karoake world, rights to copy lyrics and synchronize them with music (which is covered by the mandatory license) are not included.

The law? Compulsory licensing is for "phonorecords," and does not include audiovisual works, like lyrics. Thus, § 115's compulsory licensing scheme does not apply to audiovisual works. And synchronization rights remain with the copryight owner. courts have recognized a copyright holder's right to control the synchronization of musical compositions with the content of audiovisual works and have required parties to obtain synchronization licenses from copyright holders. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 884-85 (9th Cir.1996) ; ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 63 n. 4 (2d Cir.1996). The karaokers cannot sing this tune; Congress failed to anticipate their needs back in 1976. That Congress has and has used to power to grant licenses is instructive in this digital age. At some time, Congress will have to revisit these issues to take into account new technologies.

Karoake Law!!!!!!!!!!! It Costs More to Sing the Words.

It is just a matter of time before there is an opinion about most anything. Today's is karoake.

The U.S. Court of Appeals for the Ninth Circuit held that a compulsory license does not include the right to print or display song lyrics with the recordings. Leadsinger, Inc. v. BMG Music Publishing, Case No. 06-55102 (9th Cir., Jan. 2, 2008). So, how does karoake work?

From a copyright angle, BMG, here, the license owner, issues "compulsory mechanical licenses" to copyrighted musical compositions under § 115 of the Copyright Act. But wait; we need the lyrics, not just the song, for a karoake feast. So, in addition to the mechanical fee required for the compulsory mechanical license, BMG demanded that karaoke companies pay a “lyric reprint” fee and a “synchronization fee.”

The exclusive rights granted to a copyright author for "nondramatic musical works" to make and to distribute "phonorecords" of such works are subject to compulsory licensing. There are several different compulsory license provisions in copyright: nondramatic musical compositions, public broadcasting, retransmission by cables systems, subscription digital audio transmission, and nonsubscription digital audio transmission such as internet radio. Authors do not have every right under copyright law, and collective licensing systems have been mandated by Congress. Sadly for the karoake world, rights to copy lyrics and synchronize them with music (which is covered by the mandatory license) are not included.

The law? Compulsory licensing is for "phonorecords," and does not include audiovisual works, like lyrics. Thus, § 115's compulsory licensing scheme does not apply to audiovisual works. And synchronization rights remain with the copryight owner. courts have recognized a copyright holder's right to control the synchronization of musical compositions with the content of audiovisual works and have required parties to obtain synchronization licenses from copyright holders. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 884-85 (9th Cir.1996) ; ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 63 n. 4 (2d Cir.1996). The karaokers cannot sing this tune; Congress failed to anticipate their needs back in 1976. That Congress has and has used to power to grant licenses is instructive in this digital age. At some time, Congress will have to revisit these issues to take into account new technologies.

Taking Pictures of Toys Not Enough

In an opinion issued this year on my birthday, January 29, Shrock v. Learning Curve, Judge Milton Shadur ended a photographer's copyright claim for a copyright infringement for images he took for the company's Thomas & Friends toys. The toys were scaled-down train engines, railcars and segments of railway track, along with the occasional tram, lorry or assorted vehicle. The licensing was not clear; instead, the photographer put a "usage restriction" in the invoice, saying that the toy pictures could only be used for two years. When the company kept using them after the time period, the photographer sued.

But, the photographer had one problem: because the images he took were photographs of objects that were themselves copyrighted (i.e., the toys), the images were “derivative works, ” and were not copyrightable by the photographer. The copyright owner has the exclusive right to prepare (or to authorize) derivative works, and a third party seeking to copyright a derivative work must have the permission of the copyright holder of the underlying work.

Photographs have been recognized as copyrightable subject matter since the 1860’s. The copyrightability of a photograph depend on its level of originality, i.e., the “lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The lesson here is that the subject matter cannot be a copryighted work itself; but, the practical lesson is to work these issues out at the licensing stage, not after the work is delivered.

Taking Pictures of Toys Not Enough

In an opinion issued this year on my birthday, January 29, Shrock v. Learning Curve, Judge Milton Shadur ended a photographer's copyright claim for a copyright infringement for images he took for the company's Thomas & Friends toys. The toys were scaled-down train engines, railcars and segments of railway track, along with the occasional tram, lorry or assorted vehicle. The licensing was not clear; instead, the photographer put a "usage restriction" in the invoice, saying that the toy pictures could only be used for two years. When the company kept using them after the time period, the photographer sued.

But, the photographer had one problem: because the images he took were photographs of objects that were themselves copyrighted (i.e., the toys), the images were “derivative works, ” and were not copyrightable by the photographer. The copyright owner has the exclusive right to prepare (or to authorize) derivative works, and a third party seeking to copyright a derivative work must have the permission of the copyright holder of the underlying work.

Photographs have been recognized as copyrightable subject matter since the 1860’s. The copyrightability of a photograph depend on its level of originality, i.e., the “lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The lesson here is that the subject matter cannot be a copryighted work itself; but, the practical lesson is to work these issues out at the licensing stage, not after the work is delivered.

Starting this Blog . . . Arizona Copyright for Artists, Authors, Photographers, Software Developers, and Their Attorneys

Welcome. Copyright today is pervasive, especially in the arts - for authors, photographers, artists, painters (and for their attorneys) and in software development. Businesses face copyright issues daily. This blog is dedicated to the Arizona community with an interest -- or with questions about --copyright.

Starting this Blog . . . Arizona Copyright for Artists, Authors, Photographers, Software Developers, and Their Attorneys

Welcome. Copyright today is pervasive, especially in the arts - for authors, photographers, artists, painters (and for their attorneys) and in software development. Businesses face copyright issues daily. This blog is dedicated to the Arizona community with an interest -- or with questions about --copyright.