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Though the name Richard Posner may not mean much to you, he is well known to lawyers and law students around the United States. Until suddenly retiring in September, Posner was for many years one of the most outspoken and influential judges in the country. In his booksscholarly articles, posts on Slate.com, and, of course, his judicial decisions, Posner used a view of the law influenced by economics to decide many important cases and influence the development of U.S. law. For many years, Posner has been both an influential jurist and an outspoken critic of the judiciary, including the U.S. Supreme Court. Indeed, shortly after his retirement, he published a book entitled Reforming the Federal Judiciary: My Former Court Needs to Overhaul its Staff Attorney Program and Begin Televising Its Oral Arguments, in which he issues serious criticism of his former court.

From his position on the 7th Circuit, Posner wrote countless important decisions, including several on copyright law. I still remember the first time I really noticed Posner’s writing. It was in my law school copyright class and his decision in Gaiman v. McFarlane. In this case, Neil Gaiman, the popular author of books like SandmanAmerican Gods, and Good Omens (with Terry Pratchett) sued Todd McFarlane, one of the most famous comic artists/authors of all time, over characters from McFarlane’s original comic book, Spawn. McFarlane hired Gaiman to write several early issues of the comic, and together they developed one story line that features a Medieval Spawn, an angel, Angela, and a mysterious homeless man, Cogliostro. Gaiman argued that they both owned the copyrights as joint authors because he and McFarlane created the characters together. McFarlane, for his part, said that Gaiman only provided bare character sketches, and the characters really came alive because of McFarlane’s artistry.

In his decision, Posner ultimately held for Gaiman, writing that both Gaiman and McFarlane created the characters together, and both should own the copyrights.

The Trademark & Copyright Law blog, an excellent intellectual property blog, discusses several decisions on copyright by Posner, including this one. It’s worth your time to check it out. And now that Posner is off the court, I doubt we’ve heard the last from him. Indeed, I’m certainly looking forward to whatever Posner does next.

 

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As I’ve mentioned a few times on this blog, copyright over music is a little funny. For any single piece of music you hear, there are at least a couple of potential copyright holders to consider, as well as many different rights that are available to be licensed. In this video, Jonathan Bailey — from the excellent blog PlagiarismToday — breaks down music copyright licensing as it applies to YouTube. It’s about 10 minutes long and definitely worth your time.

 

 

 

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On September 15, 2017, the US Copyright Office released a “discussion document” detailing its suggestions for how Congress should update 17 USC 108, the section that grants a number of exceptions to copyright for libraries. And interestingly, there’s a lot of great news, here. While this document is just the first step toward copyright reform for memory institutions, it’s a good one.

This document is the result of over a decade of conversations, studies, and consideration about how best to revise section 108 in a way that balances the interests of the many stakeholders involved while addressing the way in which memory institutions work today in light of modern technology.

The result of these many conversations suggests updates to nearly every part of section 108. In the words of the Copyright Office: “The current section 108 language is insufficient to address digital works and digital transmissions, does not reflect the way that libraries and archives actually operate, and excludes museum, among other constraints.

Though a full analysis of the revisions proposed in this discussion document is outside of the scope of this blog, I want to highlight three particularly interesting parts.

First, the document proposes a fundamental reorganization of section 108 to make it easier to understand and use. Laws, regulations, judicial decisions, and other legal documents are all too often esoteric and nearly impossible for anyone but attorneys to decipher. So, this proposal is a welcome surprise, and hopefully would make section 108 much more user-friendly.

Second, the Copyright Office suggests adding museums to the scope of 108. Currently, section 108 only mentions libraries and archives in its text. As such, other types of similar institutions are unable to take advantage of 108’s exceptions. So right now, museums that are associated with libraries and archives can use these exceptions, but smaller museums cannot. This amendment would change this, adding museums to the list of institutions covered by 108’s protections.

Third, the document suggests a number of amendments to copyright law to bring it up to speed with the realities of digital copying. For instance, currently libraries and archives can make up to three copies of unpublished works for preservation. Not only does the discussion document suggest changing “publication” to “dissemination to the public” because of how the internet has blurred the definition of “publication.” It also allows libraries to make copies as “reasonably necessary” instead of limiting the number to three, recognizing that this arbitrary limit doesn’t make sense with the nature of digital copying.

Altogether, this discussion document is a very interesting start toward reforming 108, and maybe even points toward a conversation about a broader update of copyright law. Though we have no idea if/when Congress will do anything — certainly the Copyright Office has offered legislative suggestions that Congress has ignored several times in the past — it’s still refreshing to see that the agency is consciously aware of the limitations of copyright law due to its age and that libraries, users, and rightsholders are all being hurt because of the outdated laws. So we’ll keep our eyes open to see what happens.

Meanwhile, if you would like to read all 72 pages of the discussion document, you can find it here. If nothing else, it’s worth your time to check out the short and easy to understand summary at the beginning.

 

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A couple months ago, I wrote a post about a lawsuit involving PETA, a macaque, and a selfie. If you don’t recall, PETA argued on behalf of a primate named Naruto that a selfie the monkey took deserved copyright protection. At that time, PETA was appealing a ruling from the Northern District in California that the monkey was not, in fact, a copyright holder. Well, now the case is over, and the 9th Circuit (unsurprisingly) did not grant a copyright to Naruto. Instead, the parties withdrew the case, and settled out of court.

Even though, PETA did not win a copyright for Naruto, settlement still strikes me as a win for the animal rights organization. if I had to guess, I’d say that PETA didn’t really think it would get a court to agree that animals can have copyrights. Sure, it would be great if the 9th Circuit issued such a decision, but it seems unlikely. Instead, I’d bet PETA’s primary goal was to raise public awareness of the ideas that animals have more agency and personality than people often recognize and that maybe we should give animals copyright author status.

So, if my guesses are true, then PETA came away with what they hoped for and more. Not only have a number of news articles been written about this case, across a variety of well know publications like the New York Times and the Washington Post. What is more, they got David Slater, the photographer, to issue a joint statement with them saying that “this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals, a goal that they both support, and they will continue their respective work to achieve this goal.” Moreover, Slater agreed to donate 25% of all earnings from the selfies to charities in Indonesia that protect macaques. So PETA got public awareness, a statement from the defendant almost saying that they were right, and money for animals. Even though, as many people point, the selfies may not earn any money since they are in the public domain, I still say WOW!

Nevertheless, we still don’t have a firm judgement on copyright law as it applies to animals, so who knows what this settlement actually settles. While I’d argue that animals certainly aren’t authors under copyright law, it would be nice to have a court weigh in on this. And it sure seems likely to me that if/when this issue comes back up, PETA will be at the 9th Circuit once again to make their point. But for now, nothing has changed with respect to copyrights for nonhumans.

 

 

 

 

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A recent post over at the Trademark and Copyright Law Blog (a great blog which I highly suggest you read) discussed a case from the Southern District of New York that addressed de minimis copying in copyright. And after reading it, I decided that we should touch on this defense here, because I think too often people don’t realize that some copies can be too small to be infringement.

So often when considering whether it is acceptable to use a copyrighted work, we focus on fair use alone. And certainly this makes some sense; fair use is the broadest exception to copyright, it has significant support both in statutory and case law, and people talk about it relatively frequently, especially compared to copyright’s other exceptions. However, it’s certainly not the only exception to copyright. Indeed, there are many other ways to use copyrighted works without violating the law.

The de minimis defense is the idea that some issues are too insignificant for courts to spend time on. Instead, courts should focus on the more substantive issues. the full phrase is “de minimis non curat lex” or “the law does not concern itself with trifles. In copyright, courts have said that we shouldn’t worry too much about tiny infringements. Even though it may definitely be a copy, and there is no other defense available, a little copy doesn’t deserve to constitute copyright infringement, because it’s so small.

Recently, there has been a question whether the de minimis defense should be used at all in copyright, at least when it comes to music sampling. Samples are often just tiny little bits of songs, taken and put together, to create new works. Consider for example, an album like Paul’s Boutique by the Beastie Boys. Working with the Dust Brothers as producers, the Beastie Boys cut, manipulated, and pasted a wide variety of samples from Johnny Cash to the Beatles, to create one of the best records of all time. Quality aside, however, people often say that this album could never have been made today, because of how difficult and expensive it would be to get the rights to use all of the samples in it. But maybe the de minimis defense is perfect for this kind of music. Many of the samples on the record are pretty short — maybe too small for a court to worry about.

However, there has been debate in the courts over whether the de minimis defense is available for this kind of copying. In 2004, the Beasties were sued over a sample from a different record, Check Your Head. In that case, the 9th Circuit found that a 3 second sample was de minimis and too insignificant to trigger copyright infringement of the underlying musical work from the sample. Meanwhile, a year later, the 6th Circuit found that a 2 second sample infringed of a sound recording. As the court wrote in that case “Get a license or do not sample.” There was no room for argument no matter how short the sample was.

Notably, these two cases focused on different parts of copyright law as it applies to music — that is, the difference between musical works and sound recordings. But, because the Bridgeport case dealt specifically and resolutely with sound recordings, it lead some people to declare de minimis for sampling basically dead. However, recently the 9th Circuit reignited the debate in a case involving a sample Madonna used in her song, Vogue (yet another great song!). In that case, the court held, in direct opposition to the 6th Circuit, that a sample of a sound recording could, in fact, be too small for copyright to worry about.

The important lesson is this: remember the de minimis defense as well as the other exceptions to copyright. Indeed, there are a number of exceptions within the statute itself beyond fair use, and we need to keep them in mind, as well as any common law defenses, when thinking about whether something is infringement or not. And maybe we should focus on the bigger issues, rather than wasting time worrying about “trifles.”

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Of all the companies that might get into a copyright dispute over a video game, I wouldn’t have guessed it would be Atari vs. Nestle. But 2017 has been a crazy year, and now here it is.

This case concerns a recently launched ad campaign for that delicious chocolate and crispy wafer candy, Kit Kats. Atari claims that these ads improperly used one of its most famous games, Breakout.

If you’re unfamiliar with Breakout by name, you would probably still recognize it by sight. In the game, players move a platform left and right to bounce a ball up toward multi-colored bricks. When the ball hits a brick, the brick breaks, and the ball bounces back down. If players miss the ball on the way back down, they lose a life. And repeat.

As you undoubtedly noticed, Kit Kat bars look a lot like Breakout bricks. Well, someone in Nestlé’s advertisement department clearly noticed this, too. The ad plays with this fact, substituting chocolate-brown Kit Kats for Breakout’s colorful bricks. Nestle even called the campaign “Breakout.”

Wow! that’s pretty blatant.

Atari makes a number of different claims in its complaint before the Northern District Court in California, but they come down to two basic issues: First, Nestle improperly used Atari’s trademark in the name and style of Breakout. And second, Nestle improperly infringed in Atari’s copyright for the design of the game.

This case seems pretty straight forward, and, at least to my eyes, Nestle is in trouble. Of course, Nestle didn’t use the game itself in the ads. But neither trademark infringement nor copyright infringement require an exact copy. Instead, trademark infringement asks whether consumers will be confused about who owns the Breakout mark. Copyright infringement asks if the design of the game in the ad is “substantially similar” to the design of the original game. Here, the candy company created something similar enough to remind you of Breakout that also incorporated Kit Kats into it, so viewers would want to buy the candy, not play the game.

It seems clear to me that Nestle’s is specifically playing off of the popularity and recognizability of Breakout. As such, I think there is a substantial likelihood for consumer confusion, and trademark infringement seem probable. Similarly, the design of the ad is intentionally similar remind you of Breakout. And so, copyright infringement is similarly likely. Nestle has some room to argue against Atari’s claims, but I think it’s going to be hard for the company to avoid fault.

This story reminds me of all those t-shirts you can buy today that use images from famous cartoons, movies, and tv shows that are almost certainly not licensed products. While a cat dressed up like Darth Vader may be funny, it’s not necessarily legally compliant. But I doubt the people who create those shirts ever ask themselves whether it is ok to do so. They just create the shirts and hope they sell. Similarly, I wonder if anyone at Nestle ever asked whether using the design and name of Breakout would be ok. They probably just wanted to create an ad that would appeal to an audience of 30-to-40 somethings who are nostalgic for classic video games. And they probably never expected anyone to complain.

So what’s the moral of the story? I think it’s simple: Think about copyright and trademark before you create something. Stop for a second and consider ahead of time whether what you’re doing is ok, and if the answer is “no” or “maybe not”, be careful. Remember that nearly any creative work you can think of is protected by copyright, and if you use something without securing permission to do so, the owner might try to stop you.

 

 

 

 

 

 

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Though I have doubted in the past (and continue to doubt) that any real, substantive copyright reform will make it through Congress any time soon, there have been a few recent legislative proposals that I want to recognize.

First there is the is the Compensating Legacy Artists for their Songs, Service, and Important contributions to Society (CLASSICS) Act (115th Cong. H.R. 3301), introduced by Rep. Darrell Issa (R-Cali.). Jonathan Bailey wrote a great summary of it at Plagiarism Today, and I encourage you to check it out yourself. In short, this legislation aims to make sense of the copyright regime for sound recordings that were created before 1972. As you may recall from my post about Spotify the other day, music you hear is protected by two different copyrights: the musical work, which covers the notes and lyrics of the song, and the sound recording, which covers the performance of those notes and lyrics. While musical works have been protected by copyright for a very long time, sound recordings didn’t come under federal law until 1972, when the Sound Recording Amendment of 1971 took effect. Notably, though, this act did not apply to any sound recordings that existed before 1972. So, sound recordings made before this time are not protected by federal copyright law, but instead are covered by state common law and/or statute. This is particularly weird because the 1976 Act essentially eliminated all state copyright except for in sound recordings.

Though it’s just a start, the CLASSICS Act addresses at least some of the consequences of this odd duality in copyright for music. It extends to pre-1972 sound recordings the prohibition on unlicensed digital transmission and also makes them subject to the same compulsory license scheme that I mentioned in my Spotify post. Furthermore, it also brings pre-1972 works under safeguards like the DMCA safe harbor. All in all, this act seems like a step in the right direction to modernize copyright with regard to sound recordings.

Second, and most recently, is the Transparency in Music Licensing and Ownership Act (115th Cong. H.R. 3350), introduced by Rep. Sensenbrenner (R-Wisc.), again addressing sound recordings. Interestingly, this act directs the Copyright Office to create a database for nondramatic musical works and sound recordings. It then limits the remedies of copyright owners who do not provide information about their works to the database to actual damages (which are often smaller and harder to prove than statutory damages) and injunctive relief to stop any future or continuing infringement. So, it puts the onus on copyright owners to stake their claims in their works and offers a degree of protection for users of those works if the owners do not take action. Unsurprisingly, this legislation is a bit controversial. Nevertheless, it’s certainly an interesting proposal to deal with sound recordings.

Still, even with these proposals, I’m skeptical that much will actually happen about copyright any time soon. Right now, Congress has more pressing things going on, including trying to pass tax reform. Indeed, consider another recent copyright proposal, the Register of Copyrights Selection and Accountability Act of 2017. As you may already know, this act would make the Register for Copyrights a position appointed by the President with approval by the Senate, rather than appointed by the Librarian of Congress. After easily passing the House 378-48, it has stalled in the Senate. Perhaps this is because of organizations like the Electronic Frontier Foundation fighting against the Act, or perhaps it’s because Congress has other things to focus on. Who knows. Either way, it’s not clear that anything will happen with this — or any other copyright proposal — soon.

Ultimately, I’m hopeful Congress will address at least some of the areas of copyright law that are in desperate need of updates, but I’m not going to hold my breath. Still, it’s important to keep our eyes on what Congress is doing and advocate for the changes that copyright needs to work for the future.

 

 

 

 

 

 

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Today the New York Times has an interesting story about Frank Ocean and the copyrightability of Tweets that I’d like to dig into a little bit further.

The story goes that Frank Ocean performed at the Panorama Music Festival in New York City on July 28, 2017. At the show, he wore a T-shit that read: “Why be racist, sexist, homophobic, or transphobic when you could just be quiet?” It didn’t take long for people to find that this shirt is being produced by a small t-shirt company Green Box Shop that sells a number of shirts with different messages on them. But as it turns out, this phrase was not original to either Frank Ocean or Green Box Shop. Instead, it comes from a tweet from 2015 made by Brandon Male. When Male found out that his tweet had become a t-shirt, he contacted the owner of the company, claiming that he should be properly compensated for the use of his intellectual property — the tweet.

As the article points out but doesn’t go into depth on, however there is a legitimate question whether Male’s tweet is protected by the law at all. Under copyright, it’s well established that things like words, titles, and short phrases are not protected by the law. Indeed, the Copyright Office even has a circular entitled Copyright Protection Not Available for Names, Titles, or Short Phrases. Moreover, the Compendium of Copyright Office Practices, the manual that the Copyright Office follows when making copyrightability determinations, expands on this, explaining that “words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship.” Since all tweets are short phrases, due to the 140-character limit, this would seem to mean that they are not the subject of copyright protection.

Nevertheless, despite the seemingly determinative statements from the Copyright Office, this seems like a pretty narrow understanding of copyright as it applies to tweets. Certainly, some short phrases seem to be creative, original, and have enough substance to qualify for copyright protection. Consider something like a haiku. If you’re unfamiliar, haiku are Japanese poems that follow a 5 syllables/7 syllables/5 syllables pattern. For example:

You don’t need an “s”
to make a plural haiku
trust me on this one.

Like tweets, haiku are necessarily short. In fact, mine is only 65 characters, and could easily be in a tweet. But like any poem, haiku are artistic works that seems to merit copyright protection. If the purpose of copyright is to support the progress of the arts, why would the law want to deprive a certain kind of artists the ability to protect his/her works? This seems foolish.

As such, maybe tweets, too, should qualify for copyright protection, even if they are “short phrases.” Indeed, you don’t have to imagine artists using Twitter as their medium for expression. The easiest example might be comedians, who use Twitter to publish jokes. It seems hard to argue that a comedian couldn’t copyright jokes. After all, if we remember the economic justification to copyright — that is, the idea that we offer authors the ability to protect and exploit their works for money as an incentive for them to create — then short jokes on Twitter deserve copyright. Certainly comedians use their jokes to make money and would be unable to do so if they were unable to profit from them. What is more, people are increasingly publishing tweetstorms, that, when taken together, seem even more obviously deserving of copyright protection. So, we can’t simply say that tweets can’t be protected just because they are short.

Of course, I’m not the first person to think that maybe tweets deserve copyright protection. Indeed, a number of people have considered the same question. WIPO, the World Intellectual Property Organization, has an interesting post on the matter that points out some of the practical problems with copyright over tweets. And as many of these posts mention, it argues that some tweets deserve copyright protection, but probably not all of them.

So, returning to the tweet that started this whole post, while we can’t say for certain that Male’s tweet is copyrighted, at the very least it might be. And perhaps its popularity as a t-shirt proves its value as an original and creative work, despite its brevity. It’s certainly not clear, but Male has a good argument that his tweet deserves protection.

As I’ve said before, I think one lesson we can draw from this is that copyright law desperately needs to be updated. The law is over 40 years old and doesn’t make sense for all the ways that people create and use works today. The law needs to evolve to meet the needs of creators and users for the 21st century.

 

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Spotify, the digital music streaming giant, is in a bit of hot water for failing to properly pay for many of the songs on the service. Bluewater, a company that manages music publishing rights, and Robert Gaudio, a songwriter and member of Frankie Valli and the Four Seasons, have sued Spotify, claiming that Spotify did not properly license many songs that stream on the service.

In part, the case concerns what are called “compulsory” licenses for musical works under 17 U.S.C.  § 115. Music is a funny thing under US copyright law. Whenever you hear a song, there are two copyrights that protect that piece of music. First, there is the “musical work” which is the composition of the song: that is, the written down notes and any accompanying words. Then, there is the “sound recording” which is the embodiment of those words and notes: that is, the thing you actually listen to. In order to properly use a song you hear, you need to get permission for both the musical work as well as the sound recording. Notably, that could easily be two different people. Say, for instance, I wrote a song and then gave it to a band to record. In this situation, I would own the copyright to just the musical work and the band would own the sound recording.

17 U.S.C § 115 provides a way that people can get licenses to use musical works without directly asking for permission from the owner, if they follow some rules. First, this section only covers works that have previously been legally distributed to the public. So, you can’t get a compulsory license over a work just because it leaks out before it is published by the author. Next, you have to file a notice of your intent to use the musical work with the owner of the copyright. The law doesn’t say exactly what must be in this notice, but it does say you have to do it at least 30 days before you use the work. Finally, you have to pay royalties to the owner for using the work.

Bluewater and Gaudio both claim that, even though Spotify may have locked down some licenses for the sound recordings it streams, it has not properly obtained licenses for many musical works. What is more, they argue that Spotify doesn’t even have a structure in the company to handle these issues. “Spotify’s apparent business model from the outset was to commit willful copyright infringement first, ask questions later, and try to settle on the cheap when inevitably sued.” Ouch. Accordingly, they want maximum damages of $150,000 per infringement.

Without having seen Spotify’s answer yet, it’s hard to evaluate how bad this case is for the company. Still, Bluewater and Gaudio make compelling arguments that Spotify is up to no good. If nothing else, Spotify could be in for some serious monetary damages, and that is never good. As a Spotify user myself, I’ve always felt good about having a legal way to listen to the music I want to listen to, whenever I want to listen to it. So, I hope the company gets this issue resolved quickly and makes sure artists are getting the money they deserve.

If you want to know more about compulsory licenses, you can check out this helpful circular from the Copyright office.

 

 

 

 

 

 

 

 

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There’s a little piece of news from the Copyright Office about supplementary registrations: A new rule on supplementary registration is now in effect.

As you may be aware, copyright law offers optional registration that, while not mandatory, provides some nice benefits for copyright owners. Under the law, you receive a copyright over your original works when they are “fixed in a tangible medium of expression” — basically as soon as they are saved in some way. You don’t need to register your work with the government for your works to be protected by the law.

Yet even though copyright does not make registration mandatory for protection, the government wants to encourage people to register their works to help build the public record of things that have been created in the United States. So, the law offers incentives to encourage registration. These include: allowing you to bring suit in federal court, possibly qualifying you for statutory damages, and providing evidence of the validity of your copyright.

In addition to normal registration, there is also something called “supplementary registration” whereby you can correct or “amplify” (that is, add information to) registrations that you have already made.

Today, most normal registrations are made online through the Copyright Office’s eCO system. Now, with this rule, the Copyright Office has decided that most applicants for supplementary registration must file online, even if the original was done in paper. So while there are some exceptions, you can probably assume for the future that if you want to add information to your copyright registration, you will probably have to do it electronically.

The Copyright Office will be updating its online information in Circular 8 and the Compendium of the U.S. Copyright Office Practices to reflect these changes. Additionally, you can read the new rule on supplementary registrations from the Office, here.