The Copyright Office is conducting a Ruelmaking regarding Section 115 of the Copyright Act. Anyone interested in submitting comments to the Notice of Proposed Rulemaking (NPRM) MUST get them into the Copyright Office on or before the August 28, 2008, deadline.
A little background:
Section 115 provides that when musical works have been distributed to the public in the United States under the authority of the copyright owner, any other person may obtain a compulsory license to make and distribute the work (think cover songs). This ”compulsory license”–set forth in section 115–permits the use of musical works without the consent of the copyright owner if certain conditions are met and royalties are paid.
(Hear Russel Rains explain all about compulsory licensing.)
What does this have to do with Internet Radio?
Section 115 was amended on November 1, 1995, with the enactment of the Digital Performance Right in Sound Recordings Act of 1995 (”DPRA”). Among other things, this law expanded the section 115 compulsory license for making and distributing phonorecords to include distribution of a musical work by means of a digital phonorecord delivery. A digital phonorecord delivery (DPD) is
Each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein.
Here’s the rub:
The proposed regulations would permit the section 115 license to cover all musical works made and distributed to the public for private use, including those works made on the end‑users’ RAM or hard drive, on transmission services’ servers, and all intermediate reproductions on the networks through which transmission occurs. A statute that was written to cover the reproduction of physical media now applies to the songs stored in your computer’s RAM while you listen to Pandora. Very, very expensive. In fact, so expensive that it will kill Internet radio faster than Raid v. Cockroaches. Broadcast radio stations pay no royalties.
Were are we now?
Several digital media groups have asked the Copyright Office to extend the time for submitting comments on the new regulations to ensure that incidental server copies (those required to manufacture and deliver a consumer copy) and songs stored temporarily in RAM do not trigger royalties and that the 115 License covers only legitimate copies of songs, those that are burned to CD or copied to a portable device.
The Second Circuit Court of Appeals August 4, 2008, ruling in The Cartoon Network LP, LLLP v. CSC Holdings, Inc., (no copyright infringement for storing media in a remote server to watch later) gave the Copyright Office the political cover it needed to re-evaluate the regulation and to extend the rulemaking for additional comments.
“The Office agrees that the ruling in the Cartoon Networkcase may be pertinent to the issues raised in this rulemaking and that interested parties should be given sufficient time in which to consider and comment upon the implications of that ruling. Therefore, the Office has decided to extend the deadlines for submission of comments. Comments must be received in the Office of the General Counsel of the Copyright Office no later than Thursday, August 28, 2008 at 5:00 p.m. Reply Comments must be received no later than Monday, September 15, 2008 at 5:00 p.m. The purpose of reply comments is to respond to what is said in the initial round of comments. The Office will post the initial comments on its website, www.copyright.gov, shortly after the August 28 deadline.”
Hopefully, we’ll see a final rule that recognizes Internet broadcasting as a performance and not as a copy.
(For some insight into copyright reform in Canada, I’ve reposted–with permission of the author–a recent article by Canadian Attorney, Jeffrey F. Vicq.)
A fascinating though somewhat sleepy area of the law, copyright reform has garnered a great deal of attention in the last several years. In 2005, the governing Liberals introduced a copyright reform bill that died when a federal election was called. The Conservative party made copyright reform part of their 2006 election campaign platform; after taking office, their October 2007 Throne Speech promised that copyright reform would be part of the government’s agenda for that year. The government subsequently indicated a bill would be introduced in December.
However, copyright law advocates quickly mobilized a campaign against the planned legislation, suspicious that the bill would undermine the “fair use” rights of citizens. Seemingly fearful of public backlash, Industry Minister Jim Prentice decided not to introduce the bill until the legislation was in a form he “could take pride of,” striking a balance between “consumer interests, the interests of creators and users and all of that.”
William Patry has announced that he will be pulling the plug on The Patry Copyright Blog. Among his reasons were the constant tendency of readers to attribute his comments to his employer and his feeling that copyright law no longer serves the purposes for which it was created.
“Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.”
I’m not sure that there will ever be another copyright blog as interesting, insightfull or written by someone with such keen understanding of the issues. We’ll miss you.
Designers and business owners often wonder about using clip art when designing logos for their or their clients’ business. Should I hire a designer or come up with something on my own? Should I use clip art?
Two things are going on when you create a logo for your business or product. One, you are creating work of authorship that is subject to copyright protection. Two, you are creating a brand(sizzle…mooo! I hope people don’t still brand cows) that designates the origin of the goods or services you are marketing and that distinguishes them from the goods or services of others, a trademark.
Copyrights are about original works of authorship. Trademarks are about marketing.
Copyright infringement (use without permission) is all about originality. If someone is using art that looks identical to yours, that would be ok if it was created independently. For example, two people painted independent images of a frog that just happen to look very similar. As long as its independently created, you are ok. However, if you copy the image, that would be copyright infringement.
Trademarks infringement is all about customer confusion–does a competitor’s use of the same or similar mark trick the public or trade on my goodwill and reputation? With trademarks, it doesn’t matter if its independently created if it causes confusion. All that matters is who used it first and whether it is distinctive. So a trademark protects use of the image in similar industries or for similar goods. A copyright protects the work no matter how it’s used. (This issue only comes up with logos, because they are both works of arts and may serve as a trademark. For “word marks” we’d likely only be dealing with trademark issues.”)
Now about clip art. Someone else owns the copyright to that. So, when you use it, you only have a license. The license is generally contained in the clip art library you buy (CD or download.) You should read that to see what your rights are. For example, you may have to right to use it on the web or on promotional material, but you will rarely, if ever, “own” it. This is fine if you are using it on your website or in a product piece, but it’s an awful idea to use clip art for a logo. You should always hire a designer or come up with your own logo. Here’s why.
From a copyright point of view, you can only register copyright to your original artwork, or artwork that you own (say, by purchasing the copyright from another party.) If you register it. You can sue people who rip you off, you can force people to take the image off of web sites, and you can possibly force them to pay you statutory damages and attorney’s fees. If you don’t own the copyright (and a registration for your logo’s copyright.) You don’t have any of those rights. Worse, the person may also have a license to use the clip art, in which case you can’t do anything at all. Imagine the impact of seeing “your” logo used in connection with something that offends you or competes with you, and not having the power to do anything about it. Not so great.
From a trademark point of view, the issues are different. Trademarks allow you to protect your “distinctive” mark from confusingly similar marks that might trick your customers into thinking certain goods or services come from the same place. For example, the Apple logo. If someone were to use that logo in connection with a computer product, the consuming public would automatically assume that the product comes from Apple. However, if you were to use a generic clip art image (say, a flying squirrel) in connection with your internet consulting company, and 15 other companies used the same clip art images (for say, internet consulting, women’s shoes, snowboards, etc.) you would have limited ability to prevent them, even if it was causing customer confusion (in the example of the internet consulting company.)
Why? In the case of the image used with other dissimilar companies, they have a legal right to use it too because they licensed the clip art. So there is no copyright infringement problem. In the case of the image used in connection with a confusingly similar company, because the image is widely used and is unoriginal, a court probably wouldn’t find that it was “distinctive.” If it’s not distinctive, it can’t function as a trademark and you can’t protect it.
Bottom line: use clip art for general things, but when coming up with a brand for your company. Original artwork is the way to go.
After a 7-day trial, a jury in the Western District of Washington awarded a verdict in the amount of $ 1,694,480 against Sears, Roebuck, and Co. (“Sears”) and its ad agency, Young & Rubican Inc. (“Y&R”), for Sears’ infringement of Lucky Break Wishbone’s “Wishbone sculpture” (VA 1,325,348) copyright and Sears and Y&R’s infringement of the “Lucky break wishbone product warning” (TX 6,594,959) copyright.
On March 6, 2006, Lucky Break Wishbone sued Y&R and Sears for violating its copyright in the Lucky Wishbone Sculpture.Sears moved to dismiss the complaint claiming that the Lucky Break wishbone sculpture “lacks even the modicum of originality required to merit copyright protection.” According to Sears, it was just a copy of a natural item, not subject to copyright protection and, even if it were it would be a “thin copyright” at best.Additionally, because Sears allegedly infringed the copyright before Lucky Break registered the sculpture with the copyright office, Sears argued that “the Copyright Act precludes recovery of statutory damages and attorneys’ fees where the infringement commences before the effective date of the work’s registration.”
Lucky Break first published its Wishbone Sculpture in 2004, but only registered copyright in December 2005; Sears’ infringement occurred in November 2005.
In a November 16,2006, ruling from the bench, Judge Thomas S. Zilly ruled on Sears’ motion dismissing Lucky Break’s attorneys’ fees, trademark, and consumer protection claims, but upholding its copyright claim, with the understanding that “it should be the law of this case that any right to copyrightable claims should be governed by the requirements of thin copyright protection under Ninth Circuit law, and where that will take us will await another day.” (Hearing Transcript.)
A thin copyright typically means that there is not much original copyrightable expression in a particular work. Therefore, a plaintiff must show almost identical copying to establish infringement.
Plaintiff responded by filing an amended complaint, alleging only copyright infringement.Followed by a second amended complaint alleging copyright infringement of both the sculpture and the product warning. Despite numerous procedural motions brought by Sears and the higher burden of showing infringement of a thin copyright, plaintiff was able to demonstrate to the jury that Sears had obtained prototypes of the Wishbone sculpture, sent it to China to be copied, distributed it as a promotion to stores with copy of Plaintiff’s product warning, and that the promotion increased Sears sales. Therefore, Lucky Break was entitled to a reasonable licensing fee for each of the infringing wishbone’s sold, for the infringing copy of the product warning, and for the increased profits caused by the infringing promotion.
“Copyright protects your creation. All the way across the nation!”–Detective Cop E. Wright
Detective Cop E. Wright explains the ins and outs of copyright law in a new online audiovisual teaching module designed by the Library of Congress. It has a nice catchy little tune in the ”copyright exposed” section and quickly covers the main points of U.S. Copyright law. “Files on record”provides a nice time line of the evolution of copyright from the beginning of the written word until today. Also included are sections on common copyright myths and steps to secure a copyright registration. I can’t quite figure out what the target audience is, but I’m imagining its aimed at the “tweeners” out there.
NPR reporter Cheryl Corley reported today on Corbis Corporation’s continuing battle with the estate of James Brown. Corbis licenses more images than Bill Gates has pennies, but its license to use images of Mr. Brown are limited to the copyright in the image, not any underlying rights of publicity. That means that you may license copyright from Corbis to use an image of Mr. Brown, but if you make any commercial use of it, you could be liable to the Mr. Brown’s estate.
The interesting aspect of this case is the estate’s claims that by making the images available for a license fee, Corbis also ismaking commercial use of Mr. Brown’s images. Corbis scoffs at the idea noting that image banks have never been liable for the improper uses made by end users and that the estate should pursue any infringing end users, not a legitimate and legal stock image bank.
However, the 4th division of the Illinois Court of Appeals refused to dismiss the action noting that,
“In light of the vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales, we cannot say that the facts are undisputed that Corbis’ display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the Publicity Act.”
Moral of the story–always get a model release when you createan image of someone. In the alternative, when you license an image from a third party, find out what releases or licenses they have obtained before making any commercial use.
(For a great discussion of copyright versus publicity rights, read Carolyn E. Wright’s Photo Attorney blog.)
The code, which was made public today, represents the next step. Collaboratively created by a team of media scholars and lawyers, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law.
The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:
Commenting or critiquing of copyrighted material
Use for illustration or example
Incidental or accidental capture of copyrighted material
Memorializing or rescuing of an experience or event
Use to launch a discussion
Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works
According to the code, examples of such use may include, a blogger’s critique of mainstream news (commentary), the toddler dancing to the song “Let’s Go Crazy” (incidental capture of copyrighted material), and many variations on the popular online video “Dramatic Chipmunk” (recombination of existing work to create new meaning.)
In the latest ruling issued on July 1, 2008, by Federal District Court Judge, Louis L. Stanton in the Viacom v. YouTube case, Google was ordered to turn over the copies of all videos that were once available for public viewing on YouTube.com but laterremoved for any reason and all data from YouTube’s logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website.
Google argued that the data should not be disclosed because of the users’ privacy concerns, saying that “Plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP address.” However, citing Google Public Policy’s own posting, stating that IP addresses alone should not be considered Personally Identifiable Information (“PII”) (Are IP addresses personal?), the Court found that IP addresses and anonymous user names were not enough information to implicate a sufficient privacy concern to prevent disclosure to Viacom.
Despite the fact that anonymous user names and IP addresses provide insufficient information to identify an individual, the negative publicity has sent Viacom on the PR offensive to let the world know that it’s not an overweening ogre, but just your average multibillion dollar content owner next door looking to protect its interests.
Viacom also made a play for “the computer source code which controls both the YouTube.com search function and Google’s internet search tool ‘Google.com’.” Reason prevailed and this information was not ordered produced to Viacom.Viacom had claimed it would use such information to determine whether YouTube was doing everything it could to prevent online copyright infringement.
In a possible commentary on the near impossibility of preventing online copyright infringement, the Court noted that “If there is a way to write a program that can identify and thus control infringing videos, plaintiffs are free to demonstrate it.”
Peter Burrows reported this week in Businessweek on the growth of content monitoring systems, which finally may be coming of age as huge content owners (such as the AP) begin to embrace them to locate use of their content online. (See Bloggers: Big Media Is Watching.)
But why is the AP turning to companies like Attributor who promise to “Set your content free (and monetize it)?” Will content monitoring cause a chilling effect on the Internet as reviews, critiques, parodies and other fair uses are “monetized” by content owners? Or will it simply allow the owners of registered copyrights to track use of their content and stop infringing uses of their content? Among the uses of Attributor’s software is the ability to automate DMCA takedown notices, which some large content owners have been accused of using inappropriately in the past.
Pricing information is unavailable on Attribtor’s site, but according to TechCrunch, the enterprise service costs anywhere from tens to hundreds of thousands of dollars per year, but a more limited self-serve version for smaller publishers could cost as little as $6 or $7 per month, and may launch this year. The technology sounds promising for content owners wanting to obtain useful, automated information about how their content is used online, but for now, it looks like a tool for big players only.
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