Ceci n’est pas une Prince*: Richard Prince Appropriates and Repurposes Himself

Richard Prince, the (in)famous appropriation artist—and not an infrequent subject of this blog—is once again in the news. This time, it’s not because he’s defending appropriating and repurposing other people’s work as his own, but rather the opposite: Prince, with more than a little ironic wit, recently declared his repurposed Instagram shot of Ivanka Trump to be “fake art,” stating, “[t]his is not my work. I did not make it” and returning the purchase price. In repurposing his own art, Prince may have gone a long way toward answering his critics by demonstrating the transformative power of repurposing a pre-existing work—but can he really disown his own work?  Continue Reading

Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: The New York Court of Appeals Conducts an Inquiry Into the Past and the Future of State Copyright Law

Sirius XM Radio received an early present for the holidays: On Dec. 20, the New York Court of Appeals issued an opinion addressing a question certified by the U.S. 2d Circuit Court of Appeals regarding whether “there is a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?” (Opinion at 1) The New York court ruled that “New York common law does not recognize a right of public performance for creators of sound recordings.” (Opinion at 1-2) The decision was not unanimous, and two judges joined in a lengthy dissent. As a result of the New York court’s ruling, the plaintiffs in the federal class action lawsuit against Sirius XM Radio brought by two of the original members of the 1960s rock band The Turtles will not be able to pursue their claim that Sirius XM’s unlicensed broadcasts of their pre-1972 sound recordings infringed New York’s state copyright law.

The plaintiffs were pursuing state law copyright claims because federal copyright law provides limited public performance protection to copyright owners of sound recordings. As the New York Court of Appeals summarized the scope of federal copyright protection: “Essentially, the right to control performance [of a sound recording under federal copyright law] is now limited to digital radio services, and does not apply to AM/FM radio stations, nor to bars, restaurants or stores that play music in their establishments.” (Opinion at 7) As a result, led by the named plaintiffs here, lawsuits were initiated in California, New York and Florida seeking recognition of a public performance right for pre-1972 sound recordings under state copyright law.  Continue Reading

Something’s phishy here … Addressing internet scams through intellectual property strategy

This time of year, people often seek extra work opportunities to make some spare cash. Job applicants flock to websites to find employment. This also attracts scam artists who impersonate legitimate companies to hook victims. While a variety of phishing schemes use imitation to provide a look of legitimacy to the scam, one of the more common scams that we have seen is use of a fake job posting.

The fake job posting lures an applicant into sending personal information to the phishing entity. Or the “job” might consist of the applicant receiving a large check to deposit into a personal bank account and then writing checks from that account to pay “invoices,” all of which are fake. Only after the large check bounces and the personal checking account is emptied does the applicant realize it’s a scam.  Continue Reading

Blockchain Goes Mainstream

By now, few would argue that blockchain, the technology behind bitcoin, has not broken new ground. In fact, the success of blockchain has extended to an array of other fields as companies adapt its use in ways that best suit their individual needs. Whether interfacing with bitcoin or using blockchain technology in the Internet of Things (IoT), blockchain has become a compelling value proposition across many industries. This is due, in large part, to the fact that blockchain can be used to record not just financial transactions but everything of value. The incorruptible digital ledger originally developed to underpin bitcoin is now employed in many other ways. Because digital ledgers are just a method of recording data digitally, they can be applied to anything that needs to be independently recorded and verified as having occurred, such as financial transactions, agreements, contracts and ownership. Continue Reading

The Making Available Right Gets Transmitted to the U.S.

In what appears to be the first instance of an express recognition of a “making available” right under the U.S. Copyright Act, a D.C. district court in Spanski Enters. v. Telewizja Polska S.A., Civ. Action No. 12-cv-957 (TSC), 2016 U.S. Dist. LEXIS 166506 (D.D.C. Dec. 2, 2016) found a foreign defendant liable for copyright infringement for allowing video content stored in Poland to be accessed in the United States. The Plaintiff was a Canadian company that held an exclusive license to some 51 Polish television show episodes. In something of a twist, the Defendant was the producer and original owner of the episodes, but granted exclusive North and South American distribution rights to Plaintiff. Despite granting the license, the Defendant stored the episodes on servers in Poland and allowed users of its website to view the programs via streaming. The court found after a five-day bench trial that the Defendant intentionally disabled geoblocking technology that would have prevented access to the programs from North and South America. Continue Reading

Renew It or Lose It: New Rules Set for DMCA Safe Harbor Protection

Effective December 1, 2016, nearly five years after issuing an initial notice of proposed rules, the U.S. Copyright Office will be implementing new rules intended to govern the designation and maintenance of Digital Millennium Copyright Act (DMCA) agent information under a new electronic system. This is a significant action by the Copyright Office, for at least two reasons. First, in order for the safe harbor under the DMCA to be effective, all designations, including those previously submitted, must be made on the new electronic system. All new registrations as of December 1, 2016, must be completed online, while previously filed paper designations continue to be effective until the service provider has registered using the new online system or through December 31, 2017, whichever is earlier. Second, there is a new three-year renewal period for designations, which will be reset after a service provider either amends or resubmits its designation through the online system. Continue Reading

DOJ Appeals Decision Affecting Music Licensing

Lost in the news of the election, on Nov. 11, the Department of Justice (DOJ) filed a notice of appeal from an adverse decision issued by Judge Louis Stanton, who rejected a DOJ interpretation that licensees applauded and ASCAP, BMI, songwriters and publishers opposed.

ASCAP and BMI collect and distribute payments to their members – songwriters and music publishers – for the public performance of their works. Today, when licensing a piece of music, a licensee must secure the rights to the composition and the rights to the sound recording. But beginning in 1941, when the law only recognized the copyright of the composition, the DOJ took action against ASCAP because it perceived ASCAP and the music publishers to have too much power over valuable repertoires. ASCAP negotiated a consent decree with the DOJ requiring ASCAP to offer blanket licenses for all music in its repertoire on equivalent terms to any licensee, which now includes radio (AM/FM and digital), physical venues and television broadcasters. If licensees do not agree to the blanket license terms, they can file a petition in the Southern District of New York (rate court) to set the terms. These blanket licenses must be nonexclusive, and the ASCAP members must retain the right to individually license their works. BMI agreed to similar conditions that same year.  Continue Reading

Comparing Social Media Intellectual Property Policies: Part 2 – Social Media User Agreements

Social media users come in all shapes and sizes, ranging from individuals to large corporations. Users post text, images, video and sound files on social media sites. As discussed in part 1, all of this content is protected by copyright law, and in some cases other rights may apply to the content, such as rights of publicity, trademark rights and the like. The question becomes this: What rights do users have once they post content on a social media page? This article surveys popular social media user agreements with this question in mind.

Overall, as some might expect, the policies provide the social media sites broad rights to use content. In every policy, the social media site received a “worldwide, non-exclusive and royalty free” right to use the posted content. The bundle of rights granted with each license, however, varies from site to site. In the following table, we compared the specific license granted and the term of the license for several social media sites. Continue Reading

Is hyperlinking copyright infringement? EU vs. US

Over in Europe, the Court of Justice of the European Union (CJEU) has been hyperactive in the area of hyperlinking and copyright, at least as compared with the United States. The CJEU issued a much-anticipated ruling in September concerning hyperlinking’s legality in GS Media v Sanoma Media Netherlands and Others (C-160/15). It held that posting a hyperlink to a site where a copyrighted work is being displayed without the copyright owner’s consent does not necessarily violate the copyright owner’s right to authorize or prohibit any “communication to the public” under the relevant European directive (EU Directive on copyright and related rights in the information society 2001/29/EC, or the “InfoSoc Directive”). Rather, a person posting such a hyperlink makes a “communication to the public” only where that person has knowledge that the site to which it linked did not have permission to display the copyrighted work. If the hyperlink was posted for “financial gain,” the court will presume the person posting the link knew this fact. The presumption is then rebuttable by the one posting the link.

While the decision acknowledges that the internet is “of particular importance to freedom of expression and of information” and that “hyperlinks contribute to its sound operation and to the exchange of opinions and information,” it has been criticized for nothing short of potentially disrupting the flow of information over the internet as we know it. Critics deduce that many or most websites could fall into the category of linking for “financial gain” and therefore will be presumed to know they linked to a site with unauthorized content simply by placing a hyperlink. Continue Reading

Not Dat Function, Dis Function

 

When we talk these days about the role of functionality in determining the copyrightability of a useful article, we are generally talking about the 10 different separability tests currently duking it out at the Supreme Court in the Varsity Brands case. Our posts on that case are here, here and here. These tests enforce the Copyright Act’s restriction that extends protection to pictorial, graphic or sculptural works “only if, and only to the extent that, such design incorporates PGS features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

The 10 tests developed by courts take various factors into consideration, such as the designer’s intent or whether the copyrightable element could stand alone without impacting the article’s functionality. The tests generally exist on a continuum – on the one end is a trade-dress-like prohibition against protecting any functionality through copyright, and on the other is a more design-patent-like multiplicity of forms analysis that could admit some protection for functionality where there are multiple ways to design the same function. Continue Reading

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