Monkey Business: Who Owns the Copyright to a Selfie Taken by a Monkey?

By Joseph Mandour on August 14, 2014

monkeyLos Angeles – The general rule is that the person taking a picture owns the copyright to it. So, if a monkey takes a picture, who owns it? This is the hot debate that is brewing between British photographer David Slater and the folks at Wikimedia. According to the website, the famous 2011 image captured by a cheeky black macaque using Slater’s unattended equipment should be freely distributed. Those at Wikimedia claim that the animal’s self-portrait is not bound by copyright law. The photo was the product of Slater’s 2011 wildlife trip to Indonesia when a group of monkeys had taken over his camera for a bit during the three days he had spent with them.

Three years after Slater’s trip, the photo was uploaded to Wikimedia Commons, a database of millions of images and videos that are free for public use. It was added to the “Celebes crested macaque Wikipedia page” by a contributor. Slater then requested that Wikimedia remove the photo from the website, a request that Wikimedia has refused. Slater claims that allowing free use of the image is jeopardizing his income.

Slater claims that he is the owner of the photograph. The trip cost him over $3,000 and the equipment cost him over $8,000, he says. Slater said the primates took hundreds of photos, most of them out of focus. The most famous of them was the one of the grinning female macaque, which turned out like a selfie. It was later licensed for use by many media outlets.

Wikimedia is taking the strong position that there are no copyright issues with this image. The company has refused to change the image’s “open” copyright classification. Slater is opposing their stance saying that he went through a great deal of effort and money to get that photo. Those at Wikimedia question Slater’s assertion that the photo belongs to him because he did not take the picture.

Wikimedia has taken th... Read the rest

49ers Quarterback Obtained Copyright Waivers for Video Games

By Joseph Mandour on July 31, 2014

tattooSan Diego – The bicep tattoos on San Francisco 49ers quarterback Colin Kaepernick will be featured on his digital incarnation in the next “Madden” video game. The Biblical verses and religious references tattooed on the arms of Kaepernick’s virtual self will be featured on screen shots from the Electronic Arts game scheduled for an August 26th release.

Kaepernick obtained copyright waivers from the two tattoo artists who designed and inked the tattoos on his skin to avoid running afoul of copyright law. This would be the most high-profile example of an NFL player taking the advice of his union when it comes to clearing tattoos. In this particular case, both the NFL Players Association and EA insisted that he obtain the permission to use the images in the game.

“Madden” producers say they would like to get the rights to the tattoos of other players in the future. In the past, Electronic Arts and other video game companies have been sued for re-creating tattoos in their products without the artists’ permission. However, the cases almost always settle.

In order for artwork to be copyrightable, it needs to have some form of originality and be “fixed in a tangible medium of expression.”  Such a medium could be a canvas, film or audio. In the case of a custom tattoo designed by an artist, the individual’s skin becomes the canvas or medium.  Since tattoos tend to be derivative or other preexisting works, in the case the bible, at times the tattoo artist may not actually own the underlying copyright so the artist’s rights could be in question.

There was a recent similar lawsuit over the 2011 blockbuster “The Hangover Part II” in which a replica of Mike Tyson’s famous facial tattoo is inked on one of the characters’ foreheads. The artist who designed that Maori-inspired tattoo sued Warner Bros. Entertainment for copyright infringement since it did not get his permission to use the imaeg. The judge who presided over that case agreed with the artist that tattoos can be copyrighted.  So, it is not surprising that NFL officials are urging players to be proactive and protect themselves by se... Read the rest

Aereo Loses Supreme Court Copyright Battle to Networks’ Delight

By Joseph Mandour on July 8, 2014

cableOrange County – The U.S. Supreme Court has ruled that Aereo TV service, the start-up tech firm that distributes local television signals over the Internet, is a copyright infringement. The case, ABC v. Aereo, which has generated much controversy, culminated in a 6-3 decision this week will also mark the end of this small company. Aereo launched about two years ago as the cheaper option for consumers who are paying high prices for cable and satellite television.

The plaintiffs in the case were the major broadcasters, ABC, CBS, Fox and NBC, who argued that Aereo’s service was a simple ruse around the U.S. Copyright Act. Aereo basically streams shows over the Internet using tiny antennas stored in a remote location. This allows subscribers to watch shows on their televisions, computers, and tablets. Aereo argued that was merely helping consumers capture the free TV signals so it was not a copyright infringement.

If this decision had gone Aereo’s way, the major broadcasters worried that consumers might no longer subscribe to their current service. There was also the concern that cable and satellite operators might also follow Aereo’s lead and use similar technology instead of paying higher prices for the so-called retransmission fees.

While this decision was a major win for broadcasters, cable and satellite operators also have a reason to cheer because consumers could have opted out of cable and satellite television by taking a combination of Aereo and streaming services, such as Netflix and Amazon, thereby saving a bundle. Also on the side of the networks and satellite television was the National Football League, which feared that Aereo’s victory might threaten the attractive fees they get from the networks.

Aereo, which was available in 11 major metro areas, has never been available in California because of a prior court decision against such a service. A subscription to Aereo cost a fraction of what one might pay for cable or satellite service – about $12 a month, which also includes a cloud-based digital video recorder.

The Supreme Court’s decision overturns a 2nd Circuit Court of Appeals ruling that Aereo did not vi... Read the rest

Beastie Boys Win $1.7 Million in Copyright Infringement Case Against Monster

By Joseph Mandour on June 11, 2014

HeadphonesSan Diego – The Beastie Boys recently prevailed in the copyright infringement case filed against Monster Beverage Corp for using the band’s songs in an online video without permission. The case was filed in Manhattan.

The video in question involves the promotion of an annual snowboarding competition that Monster sponsors in Canada called “Ruckus in the Rockies.” The video was posted on Monster’s YouTube channel and included a remix by DJ Z-Trip of Beastie Boys songs, such as “Sabotage” and “Make Some Noise.” Monster acknowledged that it used the Beastie Boys’ songs in the video, but said that it was only because an employee thought that the company had permission to use the music. When emailed about the video, DJ Z-Trip replied saying only “dope”. This was taken by Monster as permission to use the video. The Beastie Boys argued that the word “dope” did not grant any authorization to use the songs.

The Beastie Boys complained about the video to Monster in 2012 saying that they had not given permission to the energy drink company to use their music. The lawsuit followed soon afterward. The band sought $2.5 million in damages while Monster claimed that no more than $125,000 should be awarded.

Last week jurors in the case awarded $1.7 million to the Beastie Boys. A lawyer for Monster said that the beverage company will appeal the decision. The trial lasted about eight days and Beastie Boys members Adam Horovitz, known as “Ad-Rock” and Michael Diamond, known as “Mike D,” attended the trial and both testified. During their tesimony, the band members said they have recently taken a more active role in policing the unauthorized use of their music in advertising. In March the band settled a lawsuit against toymaker GoldieBox for an unauthorized video that incorporated the Beastie Boys song titled “Girls.”

One of the founding members of the band, Adam Yauch who was known as MCA, died on May 4, 2012 at the age of 47 after a three-year battle with salivary gland cancer.

... Read the rest

Spotify and Ministry of Sound Set to Clash Over Copyrights for Dance Music Compilations

By Joseph Mandour on September 6, 2013

music-headphones

Los Angeles – London-based Ministry of Sound Group Ltd. has commenced a lawsuit against streaming music service Spotify, alleging copyright infringement of its successful dance music albums.   The complaint alleges that without authorization Spotify has been allowing its users to stream playlists that replicate its own compilations of popular dance tracks.   Ministry of Sound, which owns a famous dance club and routinely rolls out themed compilations, is not arguing that Spotify should not be allowed to let users access the songs themselves.   Rather, MoS, as it is often termed by club-goers, hinges its sole infringement allegation on Spotify allowing users to replicate the “playlists”, or order of songs, featured on its dance compilation albums.

While yet to formally answer to the claims, Spotify has expressed in the past that it has the rights to play all of the songs individually and that it can allow users to play them in whatever order they wish without violating copyright law.  If Spotify counters the lawsuit, its principle argument will likely be that the mere order in which particular songs are played cannot be copyrighted and that  MoS cannot claim copyright infringement of its compilations because they are not original enough to qualify for protection in the first place.

Spotify, which operates out of Sweden and holds rights to stream all of the songs in its impressive 20 million song library, individually obtains licenses from the record companies and owners of each track.   In light of this, pleading for Spotify users to stop creating and sharing playlists that mimic MoS’ compilations, CEO Lohan Presencer recently  stressed how much work and effort his company puts into selecting songs in a certain order to evoke a particular theme.   According to Presencer, the compilations, which have been met with wide commercial success in the dance music world, possess a fundamental element of artistry beyond the songs themselves in that the selection and arrangement of the songs is a protectable creative process.

The case already has many talking and is poised to finally answer the question of copyrightability of modern day compilations.   Several commentators have brought up what a win for Mini... Read the rest

Robin Thicke Facing Claims of Blurring Lines of Copyright Infringement

By Joseph Mandour on August 21, 2013

music-concertLos Angeles – Crooner Robin Thicke filed a lawsuit in Federal Court in Los Angeles on Thursday, asking a judge to find that his hit single “Blurred Lines” does not infringe the copyrights held for Marvin Gaye and George Clinton’s most iconic music.

Thicke brought the lawsuit along with the song’s co-writers, Pharrell Williams and Clifford Harris Jr., who uses the stage name T.I.  The complaint comes after the trio received claims of copyright infringement from the family of Marvin Gaye and representatives from Bridgeport Music, which holds the rights to some of Clinton’s music from his band Funkadelic.

Representatives for Gaye and Clinton have argued that “Blurred Lines” too closely resembles Gaye’s “Got to Give It Up” and Funkadelic’s “Sexy Ways.”  They allege that this new hit song draws heavily from these soul and funk legends’ sounds.

Thicke’s lawsuit is a proactive measure, as he hopes that a judge will find that Gaye’s heirs have no reasonable claims of copyright infringement.  This lawsuit could prevent a long, drawn-out court battle over this song.

Thicke does concede that the intention of his song was to evoke that era of 1960’s soul music, which Gaye and Clinton helped revolutionize.  In the complaint, Thicke argues that his use of commonplace soul musical elements in his song did not constitute copyright infringement.

The complaint filed by Thicke counters the arguments made by Gaye’s family by noting that copyright protection does not extend to a broad sound or genre, but only specific elements of the songs at hand.

Marvin Gaye rose to prominence in the 1960s as a soul artist on Motown records.  Known as the “Prince of Soul,” his hits include “I Heard it Through the Grapevine” and “What’s Going On.”

George Clinton’s career took off in the 1970s and 80s with lead positions in the bands Parliament and Funkadelic.  He is renowned as an innovator of funk music and performed such hits as “We Want the Funk.”

“Blurred Lines” has evoked controversy since debuting in March, as a version of the music video features a cast of nude models dancing around the song’s singers, Robin Thicke, Pharrell Williams, and T.I.

... Read the rest

Filmmaker Files Lawsuit to Cancel Copyright for “Happy Birthday” Song

By Joseph Mandour on June 21, 2013

happy-birthday Los Angeles – The copyright for the song, “Happy Birthday to You” came under fire in federal court last week when filmmaker Jennifer Nelson filed a lawsuit to cancel the copyright.  The lawsuit, brought in New York federal court in Manhattan, seeks to place the infamous birthday song in the public domain and force the copyright holder to return the licensing fees paid for use in the past four years.

Nelson became aware of this copyright when she began work on a documentary about the origins of the Happy Birthday song.  For including the song in her documentary, she was charged a licensing fee of $1,500 by the copyright holder, Warner/Chappell Music.

Upon researching the origins of the song, she discovered the song is much older than Warner/Chappell claims.  A pair of sisters named Mildred and Patty Hill composed a song titled “Good Morning to You” in 1893 as a song written for kindergarteners.  In the years following that release, the song slowly morphed into the song we now know as “Happy Birthday to You.”

While the song was commonly sung throughout the 1920’s and 30’s, the specific piano arrangement used today was not copyrighted until 1935.  Warner/Chappell Music, a subsidiary of Warner Music Group, obtained the copyright in 1988 through the purchase of Birchtree Ltd., a small musical holdings company that previously held rights to the song.

Although the song “Happy Birthday to You” has been in use for more than 100 years, Warner/Chappell claims the current copyright is strictly for the piano arrangement composed in 1935.  It claims this arrangement distinguishes the song from its previous adaptations.  Copyright law at that time stipulated that copyrights were valid for 95 years, so Warner/Chappell claims its copyright is valid until 2030.  Plaintiffs are arguing that Warner/Chappell’s version of the song is indistinguishable from the earlier version and thus any valid copyright has already expired.

Plaintiffs are seeking class-action status for the lawsuit, which would operate on behalf of all parties who have paid licensing fees to Warner/Chappell Music, a subsidiary of Warner Music Group, for rights to use the song.  She estimates that the music company collects up to $2 million per ye... Read the rest

Appeals Court Agrees: Aereo’s TV Streaming Service is Not a Copyright Infringement

By Joseph Mandour on April 8, 2013

tv_remote_control

Los Angeles – A 2nd Circuit Court of Appeals Judge affirmed an earlier decision allowing Aereo to stream live local programming to its customers via internet and its app.  The lawsuit was brought against Aereo last year by three of the major broadcasting networks, including ABC, CBS, NBC, and Telemundo and PBS.  The networks sought an injunction to prevent Aereo from transmitting the television shows, believing Aereo would need a license to continue its services.

Aereo conceded that it would be copyright infringement if it was broadcasting the shows from a single antenna to a public audience.  But instead, Aereo is leasing a separate antenna to each customer for that customer’s own private home use.  So, Aereo is making an end run around the copyright law by using its individual antennas to receive the free local signal and then upload the transmission to the internet for its customer.  For a relatively small fee ranging between one dollar per day and eighty dollars a year, Aereo houses all of the small antennas leased by its subscribers in a warehouse.  Aereo believes this is the difference between it and other companies who provide streaming through the internet.

A dissenting opinion was presented by Judge Denny Chin who commented that Aereo’s technology was “a sham.”  Chin pointed out that Aereo had found a loophole in the system by using a lot of small antennas instead of one large one.  Chin went so far as to say, “The system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

The National Association of Broadcasters (“NAB”) said it was “disappointed” with the 2nd Circuit’s decision, agreeing with Chin.  Dennis Wharton of the NAB will be meeting to confer on the subject and review its options.

The fear held by the broadcasting companies is that this move will create a chain reaction with cable companies who will also avoid paying broadcasting fees.  However, as Attorney John Bergmayer, of the organization Public Knowledge pointed out, “We all agree that people are allowed to buy an antenna.”  According to Public Knowledge’s Mission Statemen... Read the rest

Penguin’s Copyright Claims Dismissed over Rival’s Miniscule Profits

By Joseph Mandour on March 15, 2013

books Los Angeles – A New York federal judge dismissed Penguin Group USA, Inc.’s copyright infringement lawsuit against a small online library based out of Arizona that posted Penguin’s books online without authorization, saying that the online library’s profits were not sufficient for the court to have jurisdiction over the case.

U.S. District Judge Ronnie Abrams ruled that the court did not have personal jurisdiction over the matter, as Penguin was unable to show that the nonprofit American Buddha had obtained considerable profits from sales of the copyrighted works, which is required by the long-arm statute in New York.

Penguin claimed that American Buddha had received profits from a multiyear contract with Amazon.com for the sale of 13 different works owned by Penguin.  However, Judge Abrams said the organization’s $2,078.33 profit was not significant enough to satisfy the law’s requirement for the long-arm statute.

American Buddha is a nonprofit organization that is run by a librarian who is married to a lawyer that represents the website.  In its Motion to Dismiss, the nonprofit argued that Penguin’s claims were meritless because the publishing house could not meet the pleading requirements for the state of New York.

“Nothing that Penguin can say will create what does not exist: substantial revenue for American Buddha,” American Buddha said in the brief it filed with the court in November.

The lawsuit was originally filed in 2009 after Penguin discovered that American Buddha had made four copyrighted books published by Penguin available on its Website without authorization from the copyright holders.

In the complaint, Penguin alleged that American Buddha encouraged its customers to download unauthorized copies of the works.

Penguin, which makes over $1.6 billion a year on over 4,000 different titles, has spent the last four years attempting to keep the lawsuit in the New York courts.  Before Judge Abrams took over the case last July, U.S. District Judge John G. Koeltl refused to dismiss the lawsuit on jurisdictional grounds.

Judge Koeltl’s decision allowed Penguin to engage in discovery, giving it access to American Buddha’s finances, but also allowed for American Buddha to file another Motion to Dis... Read the rest

Major ISPs Agree to Six Strikes Anti-Piracy Copyright Policy

By Joseph Mandour on March 4, 2013

download Los Angeles – The film, television and movie industries launched a new program on Tuesday intended to help combat online piracy, but critics say the program will do more harm than good.

The Motion Picture Association of America and the Recording Industry of America in conjunction with Internet service providers AT&T, Cablevision, Comcast, Time Warner and Verizon devised the Copyright Alert System, which has developed the moniker the “six strikes policy.”

The creators of the Copyright Alert System claim that the program is intended to educate Internet users who download copyrighted materials without authorization.

Under the program, owners of copyrighted material will search the Internet for material they own and if they find material being shared without authorization, the owners will determine the IP address of the computer that shared the material.  They will then take the IP address to the corresponding Internet service provider who will contact the user about his or her behavior.

The first and second time users are caught sharing material without authorization, the Internet service provider will send users an email and voicemail, informing them of the copyright infringement.  The email will also including information on detecting and removing file-sharing software on a computer and give users information on how to obtain authorized copyrighted material.

After the third and forth offenses, users will automatically be redirected to a website that requires them to acknowledge they received and understood the emails.  A short video explaining copyright law and the ramifications of infringing copyrights will also be on the site.

Users who are caught a fifth and sixth time will receive “mitigation measures.”  This means that the Internet provider will slow down the user’s Internet connection for several days.

The creators of the Copyright Alert System say they will not take any action after the sixth offense, saying the program is meant to be educational and if users are continuing the behavior after six warnings, they are not going to change their behavior.

The Internet service providers claim they will keep user information confidential.  However, the owners of the copyrighted material can obtain t... Read the rest

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