The major intellectual property story of the spring has been a lawsuit by Marvin Gaye's estate against Pharrell Williams and Robin Thicke. A jury recently held that Thicke and Williams' song, "Blurred Lines," infringed on the copyright for Gaye's song, "Got to Give It Up." I have not been following the litigation very closely, and I do not have much analysis of my own to add regarding the litigation itself, but you can find additional analysis and criticism of the case and verdict here, here, here, here, and here.
While I am not a big fan of Pharell Williams or Robin Thicke, I am far more interested in the work of Weird Al Yankovic. Weird Al wrote an excellent parody of Williams' and Thicke's song, entitled "Word Crimes." Here it is:
While Weird Al made sure to get permission from Thicke and Williams to use their song as a basis for his parody, would Thicke and Williams' recent loss spell trouble for Weird Al?
Sherwin Siy thinks that Weird Al could potentially be affected by the "Blurred Lines" litigation. While the Gaye estate did not sue Weird Al in time to recover damages for copyright infringement, the estate may still be able to sue Weird Al to recover a share of his profits from the song. As Siy notes:
While awards of damages for copyright infringement are joint and several, awards of the infringers’ profits are only several. This means basically that each infringer is responsible for their own profits, and not anyone else. You can see how this works: though the Gaye estate was damaged a certain amount by everyone (here, let’s say, Pharrell, Thicke, and Yankovic) acting in concert, each of those three different people made a different amount of profit, separate attributable in part to their use of the song.
So while it’s too late for the Gaye estate to recover damages from Weird Al (or, to be more accurate, they already have, in a way), they could still try to go after him for his profits on “Word Crimes,” to the extent that those profits can be attributed to his taking from “Got to Give It Up.” And giving Al Yankovic a reason to worry is just one more reason to be upset with this verdict.
So even though Weird Al was not involved in the original infringement suit, he may still face difficulties if the Gaye estate seeks to capitalize on its recent victory. But if that victory ends up getting appealed, perhaps Weird Al will be free to continue marketing his parody without disruption.
So notes the ABA Journal, reporting on a letter that Katy Perry's lawyers sent to the 3D printing company, Shapeways:
Lawyers for Katy Perry sent a cease-and-desist letter to a 3D printing company selling Left Shark, the uncoordinated costumed character who danced next to the singer during the Super Bowl.
. . .
Shapeways complied and removed Left Shark from its catalog. According to its website, users can design a product with the help of a 3D printing app and upload it to Shapeways, which produces the product and sells it.
. . .
[The designer of the 3D printing model, Fernando] Sosa told CNBC he offered to pay royalties to market Left Shark, but he was turned down. Sosa has since placed his design on Thingiverse, which requires the downloader to do the 3D printing, according to Gigaom. Sosa is offering the download for free.
Above the Law has a portion of the cease and desist letter here.
Here's a video of Katy Perry's Superbowl performance where Left Shark made its appearance. The poor dancing that rocketed the shark to international renown begins at around 1:25:
Staci Zaretsky at Above the Law comments on this story as well. She notes that New York University Law professor, Christopher Sprigman, takes the position that Left Shark is a useful article and therefore cannot be copyrighted.
Going to Twitter, it appears that this story has developed further since Above the Law's initial coverage. Sprigman posted a link to this announcement which suggests that the US Copyright Office has taken the position that costumes are useful articles and therefore not subject to copyright protection.
Useful articles are design aspects of an item that cannot be separated from a utilitarian function that the item performs. As the Second Circuit Court of Appeals noted in Chosun International, Inc. v. Chrisha Creations, Ltd., quoting 17 U.S.C. § 101:
"[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.") (emphasis added). For this reason, one may not copyright the general shape of a lamp, because its overall shape contributes to its ability to illuminate the reaches of a room. But one can copyright the fanciful designs imprinted on, or carved into, the lamp's base, so long as those designs are unrelated to the lamp's utilitarian function as a device used to combat darkness.
But things may get complicated when costumes are involved. As this post from Foley & Hoag's Trademark and Copyright Law Blog notes, while a costume may indeed be a useful article, the Chosun court went on to state that design elements of the costume may be separated from its function as a costume and subject to copyright. In the words of the court, parts of the costume that "invoke in the viewer a concept separate from that of the costume's 'clothing' function," the addition of which is "not motivated by a desire to enhance the costume's functionality qua clothing," may indeed be subject to copyright protection. (Chosun, 413 F.3d at 329-30).
This abstract, vaguely worded test practically begs eager intellectual property lawyers to file lawsuits.
Fortunately for Fernando Sosa, the designer of the 3D printed Left Shark, it looks like Sprigman is taking his views beyond the world of tweets and commentary. From Sosa's Twitter account:
Sosa may indeed need legal representation, since he has decided to share his Left Shark design on Thingiverse. While he is no longer selling the 3D printed Left Sharks, the cease-and-desist letter referred to Sosa violating copyright by using "shark images," as well as "shark costumes" in developing his 3D printed sculptures.
While Sosa may no longer be producing the sculptures himself, Katy Perry's claim over the images would likely extend to Sosa's digital design for the 3D printed Left Sharks. If Katy Perry continues to pursue her claim, there may end up being some interesting litigation over whether a costume can be copyrighted.
During the summer of 2014, everybody on the Internet briefly became a copyright expert, scholar, or commentator as people debated the copyright status of this photo taken by a monkey:
The copyright dispute over this photo revolved around whether the photographer whose camera the monkey stole to take the picture owned the copyright for the photo. The U.S. Copyright Office concluded that the picture could not be copyrighted since it was taken by the monkey, by including a notably-specific hypothetical scenario on page 8 of this vast report.
While the U.S. Copyright Office's say may put an end to the copyright speculation, Craig Whitney of the Socially Aware Blog notes that this picture may end up making its way back to intellectual property debates in the trademark arena.
Whitney highlights this application for trademark status which features a picture that looks strangely similar to the monkey selfie photo. Whitney writes:
A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item). The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken. Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate. But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.
The trademark application is still in the early stages, and I don't know nearly enough about that area of law to give an informed opinion on the application's merits or whether it may be challenged. But if any law students are reading this post, it might be a good idea to flag this story just in case Intellectual Property professors are considering writing exams on some of the stranger areas of copyright and trademark law.
I came across this fascinating letter by Christopher Jon Sprigman to Peter Brody, the lawyer for the Harvard Law Review Association. Sprigman informs Brody that the Bluebook -- a 500+ page tome of meticulous rules for legal citations -- is arguably not protected by copyright.
Sprigman points out that the copyright for the 10th edition of the Bluebook (now in its 19th edition) has expired. He goes on to argue that much of the 19th edition is indistinguishable, and that courts' requiring lawyers to use Bluebook citations transforms the Bluebook's rules from copyrightable material into "government edicts."
From the later paragraphs of the letter:
Based on what we’ve learned, we have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook – a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.
In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.
I'm no expert in copyright law, so I'm not sure how far Sprigman's arguments will go. But I can't help but hope that Sprigman's Baby Blue project will succeed. Until then, however, I will get by with my hard copy of the Bluebook (and the publicly-available California Style Manual).
Blizzard argues that those who make the cheats for Starcraft II infringe Blizzard's copyrights by copying or recreating the game in the process of manufacturing the cheats. Moreover, Blizzard's terms of use for its online competitors prohibit users from making "cheats, automation software (bots), hacks, mods, or any other unauthorized third-party software designed to modify the Service, any Game, or any Game experience." Blizzard argues that makers of cheats know that this contract exists, and that the makers of cheats induce Starcraft II players to violate their contracts, which undermines the game's legitimacy. The hackers Blizzard is suing are those who are able to circumvent Blizzard's "Warden" security measures which generally prohibit players from using hacks and modifications.
Blizzard has sued makers of mods before. In 2013, the company won a lawsuit against Ceiling Fan Software, which had manufactured a bot for World of Warcraft players. The District Court for the Central District of California's ruling is available here. The bot would allow the World of Warcraft players' online characters to "engage in repetitive and elongated play" of the game, which would allow players to obtain experience and "virtual currency" over "periods of time impossible for human players (for example, through the night or for hundreds of hours without interruption)" (apparently the court was not familiar with the habits of some human players of World of Warcraft).
In its lawsuit against Ceiling Fan, Blizzard argued that these bots violated the same terms of use that Blizzard is raising in its current lawsuit against the Starcraft II hackers. The court held that Ceiling Fan's bots and their distribution of the bots was tortious interference with the Terms of Use contracts to which World of Warcraft players had agreed. The court that decided the Ceiling Fan case is the same court in which Blizzard has filed its lawsuit against the Starcraft II hackers.
While I am not familiar enough with the mechanics of manufacturing cheats, bots, and hacks to know if Blizzard's copyright claims will succeed, it looks like Blizzard has a pretty good chance of arguing that the defendants interfered with its terms of use contracts.
The Wall Street Journal Law Blog has a post discussing a recent lawsuit filed by Katherine Heigl against Duane Reed. Heigl argues that Duane Reed's tweet of a paparazzi photograph of her carrying bags from the store violates the Lanham Act by tricking consumers into thinking she endorses the store. The post notes that there is doubt over whether this suit would succeed, since Duane Reed's tweet may be considered a "communication" rather than an advertisement.
This follows about a month after the internet exploded with terrible copyright law discussions when commentators got it into their heads that Bradley Cooper owned the copyright to Ellen Degeneres' Oscar Selfie (See, e.g., here and here).
Spending lots of time on Facebook looking at pictures of friends could make women insecure about their body image, research suggests.
Which leads me to (only sort of facetiously) wonder whether further research that solidifies a link between selfie-viewing and psychological harm could lead to liability lawsuits against the website (section 230 of the Communications Decency Act could add a fascinating wrinkle to this thought experiment).
Carmen Rasmusen Herbert writes (in one astounding paragraph) about how people may bully others by posting unpleasant comments on people's online selfies, raising the question of whether the insulted selfie-poster could fire back with a lawsuit for intentional infliction of emotional distress (perhaps by drawing on Esposito-Hilder v. SFX Broadcasting for support).
I couldn't resist searching for "selfie!" on Westlaw. I only found two cases involving selfies. In U.S. v. Doe, 2013 WL 4212400 (W.D. N.C. 2013), the court held that a magistrate judge could base the issuance of a search warrant on a police officer's assertion that individuals often take "unflattering" pictures of themselves, and that a suspects phone would therefore probably contain incriminating evidence. In U.S. v. Chaidez-Reyes, 2014 WL 547178 (N.D. Ga. 2014), the court mentioned the possibility that the government could have made similar argument in a cell phone seizure case, but pointed out that the government failed to make this argument.
Selfies implicate a surprising number of legal issues. It seems that there should at least be a law review symposium devoted to the phenomenon. Or perhaps a legal treatise. Smith on Selfies has a nice ring to it, after all.
A store opened in the Los Angeles neighborhood of Los Feliz this weekend calling itself “Starbucks ,” only with the word “dumb” in front of the name. “Dumb Starbucks” had a Dumb Starbucks logo, a Dumb Starbucks menu, even Dumb Starbucks cups (in Dumb Grande, Dumb Venti and Dumb Tall).
. . .
As the FAQ reads: “Although we are a fully functioning coffee shop, for legal reasons Dumb Starbusks needs to be categorize [sic] as a work of parody art. So, in the eyes of the law, our “coffee shop” is actually an art gallery and the “coffee” you’re buying is considered the art. But that’s for our lawyers to worry about. All you need to do is enjoy our delicious coffee!”
The store has a Twitter account, where it shared a picture of its menu:
While Dumb Starbucks claims that can use Starbucks's logo and name because Dumb Starbucks is a parody, I think that they will have a difficult time arguing this in court. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a work of parody may be protected from lawsuits because it can be a "fair use" of the copyrighted work. The Court pointed out that it is dangerous for fair use evaluations to rely on judges' ability to determine when a parody is in good or bad taste, limiting the "threshold question" of whether a parody work is protected by fair use to "whether a parodic character may reasonably be perceived." But the Court added a footnote immediately afterwards noting:
The only further judgment, indeed, that a court may pass on a work goes to an assessment of whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely “supersede the objects” of the original.
All that Dumb Starbucks seems to be doing is putting the word "dumb" in front of Starbucks's name and menu items. Beyond "Dumb," there seems to be no departure from Starbucks's original name, menu items, and logo. There is no other indication that Dumb Starbucks is criticizing Starbucks or its products.
While the Court in Campbell held that the parody song was protected fair use, the Court made sure to point out that "[t]his is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free." Here, Dumb Starbucks seems to be attempting to do just that.
And given Starbucks's litigious nature, I doubt that Dumb Starbucks will be around for very long.
UPDATE
Some further research indicates that the legal analysis here might be a bit more complicated, since Campbell was a copyright case, and Starbucks seems to be threatening trademark action against Dumb Starbucks. I am not an expert in intellectual property law, and I am certainly less of an expert when it comes to trademark. The central question in trademark cases is whether consumers will likely be confused that the infringing use of a trademark is being endorsed by or is associated with the trademark holder. That being said, it seems that Dumb Starbucks will still have a difficult time arguing trademark claims, since it is difficult to see how Dumb Starbucks's use of Starbucks's trademarks describes Dumb Starbucks's own products or how the use of the trademarks is part of an overall critique of Starbucks. And Dumb Starbucks's pervasive use of Starbucks's various trademarks will make it difficult for Dumb Starbucks to show that they are using only as much of Starbucks's trademarks as is reasonably necessary to identify Starbucks as the target of the parody.
The Des Moines Register reports on a lawsuit that ARAG North America has filed against Google as a result of a blogger's use of a picture of one of ARAG's executives:
ARAG North America, which provides legal insurance, sued the Internet giant last month in a case legal experts say exhibits an increasingly common clash over bloggers who post images online without permission.
The lawsuit concerns a head-and-shoulders photo of Ann Dieleman, a senior vice president and chief marketing officer with ARAG. The photo was published in 2009 on SexyExecs.blogspot.com, a forum where users post photos of executives with satirical comments.
The register reports that the picture remains posted on the blog (I have confirmed this as well). The blog itself is interesting, with its "voice" coming across as a strange combination of a snide Reddit commenter with the character "Rorschach" from Watchmen. For example:
Suit matched to hair. Literal interpretation of the white collar worker. Great moustache. Glasses. Bad tie. Skin that was last exposed to sunlight on the Sunday afternoon prior to starting the job in April of 1991.
But the blog is not what makes this story interesting -- it is the dispute between ARAG and Google, which owns Blogger, the company that hosts the SexyExecs blog (as well as this blog). The Register explains the progression of events that have led to the lawsuit:
The legal battle started in September 2012, when Trout sent Google a letter accusing the company of copyright infringement. Google declined to remove the photo without proof that ARAG held the copyright.
Trout responded by saying ARAG owned the copyright of the photo and requesting Google to remove it.
In an email, Google again declined.
. . .
Jeff Hermes, director of Harvard University’s Digital Media Law Project, said the lawsuit shows Google is willing to look at copyright infringement accusations on a case-by-case basis.
“Google is apparently not rubber-stamping all of these as they come through,” he said.
. . .
Hermes said the company has little financial incentive to fight for one photo on one blog. But the company, he said, might see a competitive advantage in protecting their users’ right to post images online.
It is interesting to see Google asserting itself against claims of copyright violations on blogs in cases like this. The article notes that Google received 25 million take-down requests in December 2013. One might expect a website faced with so many take-down requests to automatically comply with most or all of them in an effort to avoid liability. Indeed, expectations like these form the rationale for several important statutes, including section 230 of the Communications Decency Act.
But here, Google, seems to be taking a case-by-case approach, rather than automatically complying with ARAG's take-down request. And Google is doing this for a blog that has been inactive since 2011. This case makes me wonder how often Google actively resists take-down requests, rather than automatically removing content.
At Volokh Conspiracy, Stewart Baker has a nicely-titled post that discusses a recently-posted paper by W. Michael Schuster on artists that create mashups that digitally sample copyrighted works. I've posted previously about these mashups, specifically as to whether mashup creators could copyright the mashup and sue others who create similar mashups.
Here is the (lengthy) abstract of Schuster's paper:
This Article presents an empirical study on the effect that digital sampling has on sales of copyrighted songs and how this effect should influence the fair use analysis. To conduct this research, a group of previously sampled songs had to be identified and sales information for these songs collected. The over 350 songs sampled in musician Gregg Gillis’s (AKA Girl Talk’s) most recent album presents an ideal dataset because the album’s instantaneous popularity allows for its influence to be analyzed through a comparison of the sampled songs’ sales immediately before and after release. Collecting and comparing sales information for these songs found that — to a 92.5% degree of statistical significance — the copyrighted songs sold better in the year after being sampled relative to the year before. To the extent that the Copyright Act instructs courts to analyze (among other considerations) the effect that an alleged fair use has on the potential market for the original work, these findings favor the conclusion that digital sampling is a fair use (though each statutory fair use consideration should still be reviewed).
Additionally, the songs sampled in the subject album were evaluated to ascertain the length of each sample and to what degree each sampled song had experienced prior commercial success. This collected data was used to test the hypothesis that sampled songs which were more recognizable to listeners (e.g., songs that were commercial hits or songs that were sampled for a relatively longer period) would see a greater sales increase after being sampled. The collected data did not find a correlation in post-sampling sales increases and sample length or prior commercial success, but further study may be warranted.
Beyond supporting the premise that digital sampling may constitute fair use, the results of this study raise several notable issues and subjects for future study. One such issue is that courts only address an alleged fair use’s effect on the market for the original as a binary system, wherein the only options are harm to the market (disfavoring fair use) or no harm to the market (favoring fair use). There is no accepted rule on how to treat a market benefit (such as the one evidenced here). The failure to address this issue is questionable because a market benefit actually furthers the utilitarian goal of copyright by incentivizing the creation of new works through economic gain. The current research makes clear the need for precedent on how the fair use analysis should treat actions (e.g., digital sampling) that may increase sales of the original work. Additionally, this study sets the ground work for an objective financial review of fair use and market effect, which would yield needed predictability and stability to the fair use doctrine (at least, with regard to digital sampling).
I'm not one to hesitate to criticize the empirical methodology of studies, but in this case, Baker got there first. He notes:
Actually, though, I think the article is a little too comforting. I am always skeptical of scholarly research that reinforces academic prejudices, since scholars tend adjust their standards of proof to fit their prejudices. Hostility to copyright is pretty much the norm in academic circles, and if you read the article skeptically, it loses much of its persuasiveness. Schuster achieves his results by playing with the sample, dropping nine songs from a sample of about 200 because they completely wreck his argument. His reason for dropping the songs is that they were hits in the 30 months prior to the release of Girl Talk’s album, and hits by definition suffer declining sales after topping out. If he didn’t drop those songs, Schuster’s data would show a 50% drop in sales of the songs that Girl Talk samples.
Schuster says he’s just correcting for noise in the data, and it isn’t appropriate to charge Girl Talk with the natural rhythm of pop music sales. Maybe so, but once you start making big after-the-fact adjustments to a sample of 200, you can prove pretty much anything. At best, Schuster has developed an interesting hypothesis that ought to be tested by a new experiment untainted by data cherry-picking.
The only point that I would add to Baker's reaction is that I was already suspicious of the study by the time I read the abstract, due to Schuster's note that his study arrived at a conclusion "to a 92.5% degree of statistical significance." This is an oddly specific way of framing the results. While I am not an expert on statistics, I think that this phrasing is a way of avoiding an admission that the level of statistical significance falls below the typically-accepted levels of P=.05 or P=.01 (for the really strong claims). Those P-values would translate into levels of statistical significance of 95% and 99%, respectively, and it would seem that Schuster's study falls short of these widely accepted levels of significance. For more on statistical significance thresholds, see these posts about the .05 threshold at the Empirical Legal Studies bloghere and here, and a post cautioning overreliance on these thresholds here.
In the spirit of that last post I mentioned above, I don't think that this worry about significance should be fatal to Schuster's study, but I think that it, combined with Schuster's selection methods, should raise some doubts. At the same time, however, I think that Schuster is on to something interesting, and a wider study may well lead to more solid results in favor of his thesis.
The BBC and The Guardian report about a UK lawsuit between Ministry of Sound and Spotify. Ministry of Sound, a company that creates compilation albums consisting of various songs in a specific order, is suing Spotify, a music streaming service that lets users create song playlists, arguing that Spotify users are creating playlists that copy Ministry of Sound compilations. Ministry of Sound argues that this infringes on their intellectual property rights. In an editorial on The Guardian website, Ministry of Sound's Chief Executive, Lohan Presencer, explains the basis of the lawsuit:
[Spotify users] were copying our compilations. They were posting them as their own playlists and calling them "Ministry of Sound". We assumed it was an oversight on Spotify's part and contacted the company to request it remove the offending playlists. It declined, claiming there was no infringement and it wasn't its responsibility to police its users.
Several rounds of legal letters later, this dispute will now be settled in court. We believe we have a clear cut case. After 20 years and more than 50m album sales, the value and creativity in our compilations are self evident.
Ministry of Sound argues that creating mashups requires skill and effort, noting that it has developed techniques for creating effective mashups such as avoiding repeated alternation of loud and soft songs, and ordering songs so that songs by an artist are followed by songs written by the artist. I am no expert on intellectual property law, and I'm certainly even less of an expert on UK intellectual property law, but I am interested in seeing how this case develops. The story also raises a question that I think is interesting: could a mashup artist claim copyright protection of his or her compilation and sue a party that copies this compilation by creating a playlist of songs that copy the order of the songs in mashup compilation?
