Those sounds that rudely invade movies, lectures, sermons and other public quiet spaces have a more clinical name: ‘digital phonorecord deliveries’ (DPDs) and now we know that ringtones may be subject to the compulsory licensing under Section 115 of the Copyright Act. A ringtone is a ’snippet’ of music lasting 10 to 30 seconds, often taken from a larger work.

The Copyright Office, in a 35 page ruling held, that ringtones warrant payment for using a ’snippet’ of the larger piece of music:

“We find that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords and the delivery of such by wire or wireless technology meets the definition of DPD set forth in the Copyright Act. However, there are a variety of different types of ringtones ranging from those that are simple excerpts taken from a larger musical work to ones that include additional material and may be considered original musical works in and of themselves. Ringtones that are merely excerpts of a preexisting sound
recording fall squarely within the scope of the statutory license, whereas those that contain additional material may actually be considered original derivative works and therefore outside the scope of the Section 115 license.8 Moreover, we decide that a ringtone is made and distributed for private use even though some consumers may purchase them for the purpose of identifying themselves in public. We also conclude that if a newly created ringtone is considered
a derivative work, and the work has been first distributed with the authorization of the copyright owner, then any person may use the statutory license to make and distribute the musical work in the ringtone. For those ringtones that are covered by Section 115 of the Copyright Act, all of the rights, conditions, and requirements in the Act would apply. For those ringtones that fall outside the scope of Section 115, the rights at issue must be acquired through voluntary licenses.”

The ruling can be found at the Copyright Office web page:

http://www.copyright.gov/docs/ringtone-decision.pdf

This ruling is especially interesting when the Google Print Library Project is relying upon a fair use “snippets” defense to legitimize Google’s wholesale, unauthorized copying of works in copyright. If a snippet of music is subject to compulsory copyright licensing, how could a snippet of text be otherwise?

Digital Rights Management (DRM) is the focus of the the United Kingdom’s “All Party Parliamentary Internet Group” (APIG); and, these are the questions addressed:

1. Does DRM distort traditional trade-offs in copyright law?
2. Do new types of ‘content sharing licenses’ need legislation to be effective?
3. How should consumers be protected when DRM systems are discontinued?
4. What legal protections should DRM systems have from those who wish to circumvent them?
5. What role does the UK Parliament have in influencing the global agenda regarding DRM?

After many meetings and some testimony from interested stakeholders and consumers, the APIG acknowledged that the issues and answers to the questions had eluded easy answer in the complicated technical and ‘hugely fascinating’ area. The following, while not answers, are the APIG recommendations:

A. There should be wider ranging exceptions to the anticircumvention prohibition than presently are on offer;

B. Labeling should be mandatory to mitigate the current consumer confusion around what is permitted and prohibited in their using the digital content that they purchase.

C. Vigilence and care will be needed to preserve the ’single market’ aspirations when confronted with the differential pricing of DRM.

D. The strong position that the government NOT make DRM mandatory.

No Halloween prank was it when three Parisian residents marched first across the Latin Quarter handing out leaflets in which they confess copyright crimes; and then they, and their entourage of 40 waving banner, marched into the Paris police station where they efforted to turn themselves into the highest ranking on-duty officer.

News of their confession campaign had preceded them; and, almost as many armed riot police stood waiting with the forty plus confessees. It was a slow process with some of these foot soldiers in the DRM Resistance offering to confess to by-standers in lieu of the senior officer’s ear. One carried a sandwich board which read ” I LENT MUSIC TO A FRIEND”, and another called out “Not only did I not use an iPod to listen to an iTune, but I also transferred a first run movie to a hand held device, and I am willing to suffer the consequences.”

This demonstation was a protest against the Digital Rights Management (DRM) policies that are creeping into the use of legally purchased songs and videos and in favor of the recent French law which is intended to force compatiblity among all listening and viewing platforms.

The 9th Circuit affirmed a lower court decision that Plaintiff’s screenplay The Funk Parlor” was not infringed by the HBO television series “Six Feet Under: The court found that while at a general level, elements of the two shows were similar, the devil was buried in the details.

The court found that both stores took place in a funeral home and began with the death of the family patriarch. Both stories also share a male character who comes home to help run the business after the death, and both stories have family members who end up in strange love relationships, including a character in each screenplay who is romantically involved with her brother.

Notwithstanding these similarities, the Court found that the themes of the stories are vastly different. Moreover, in looking at the setting, mood, and pace of the stories, the Court found significant differences, too.

In finding no copyright infringement, the Court held that the plaintiffs rely heavily on scenes a faire in their argument and do not focus on the actual elements of the story that are unique.

Reality television show themes and movie plots are among the theatre forming the new platform for the evolving area of state jurisdiction over ‘idea submission’ theft in New York and California courts. Arising from the case in which Jeff Grosso sued Miramax for Miramax’s movie, “Rounders”, the Ninth Circuit held that while Grosso failed to prove copyright infringement and therefore had no standing in federal court, the issue of idea theft was not pre-empted for resolution in state court.

Since the Ninth Circuit ruled in Grosso v. Miramax, there have been many state cases filed by the emboldened plaintiff’s bar in both New York and California.

In California, four Californians sued Fox Broadcasting in July alledging that the reality television show, “So You Think You Can Dance” was stolen from an idea that the four conveyed in a meeting at Fox in 2003. At that meeting, the four individuals told a Fox executive of the idea and agreed to write, produce and direct it. No outline of the idea was written down; no script was written; no contract was signed; no confirming letter was sent; and no copyright application was filed.

In New York, two cases were filed this summer. The first is a suit against Warner Brothers filed by and author, Matthew Benay, for stealing the idea for the movie, “Samurai”. The second is a suit against NBC by author, Maurice Fraser, who claims to have pitched a reality television show theme and idea which was not acknowledged or paid for, but which is about to be released in the fall show, “World Vision: An American Anthem”.

These Californian and New York plaintiffs are optimistic that their claims of idea theft will fare better than Grosso’s. This month, the California Court threw out Grosso’s state case that “Rounders” was stolen from Grosso’s script, “Shell Game”.

Adding to the complexity, the standards for which ideas and under which contextual circumstances idea theft may be actionable vary widely between New York and California law. Which means that reality television is likely to spawn more litigation as ‘reality’ and television seem to be increasingly entwined.

Although Smack Apparel has been selling colleagiate t-shirt parodies since 1989, the absence of authorizing licenses was not a business oversight. Smack Apparel proudly announces on its website, “Licensed ONLY by the First Amendment” when it uses colors, fonts and near verbatim phrasing of popular college imprimaturs at www.smackapparel.com.

For Duke University – Puke

For Louisiana State – Bourbon Street or Bust

Colleagiate Licensing together with seven schools ( Louisiana University, University of Oklahoma, University of Southern California among them) sued Smack Apparel alledging trademark infringement by school color appropriation.

U.S. District Judge Mary Ann Lemmon of the Eastern District of Louisiana granted summary judgement in favor of Plaintiffs and finding trademark infringement for defendant’s color misappropriation.

Counsel for Plaintiff, Collegiate Licensing, commented that such infringement as that of Smack Apparel, amounted to an estimated detour of over three (3) billion dollars in retail collegiate merchandise which denies the schools of scholarship and endowment monies.

Board of Supervisos of the Louisiana State University et al v. Smack Apparel 04-1593 (2006) E.D. Louisiana.

Dice Corp is in the business of selling software into the niche market of the security and alarm industry; and, as a part of that business was a nonexclusive licensee, a dealer, of an accounting and business software package, THOROUGHBRED. Dice found the THOROUGHBRED license to be cumbersome and restrictive.

So, Dice designed some self help that allowed Dice to sublicense the THOROUGHBRED software multiple new locations and users. The self help was a bit of custom code that facilitated the installation of the licensed code without any of the restrictions – the install code, for instance. Dice sublicensed to several end users using this free wheeling process.

Thoroughbred, the licensor, exercised their rights to audit the sublicenses that Dice was granting; and hired a private detective to verify that there was a whole subset of unauthorized sublicensees that Dice had set up. Thoroughbred sued; and Dice defended that it was contract breach, not copyright infringement.

The trial court in the Eastern District of Michigan on July 21 found that there was copyright infringement, not breach of contract; but, limited the damages to be paid to Thoroughbred to be the amount that Thoroughbred would have gotten but for the unauthorized licenses. This damage calculation is not the amount that the plaintiff was entitled to under the statute, but in favor of keeping the ongoing business relationships going, perhaps enough for Thoroughbred.

Facts as rare as a winning lottery ticket, but not so sweet.

One of the tunes on the “Saturday Night Live” movie is “Disco Inferno”; and the facts surrounding that song’s renewal are the makings of a rare copyright question.

Two collaborators, Kersy and Green, were joint authors to the song when they wrote it in 1977 after the 1976 Copyright Act was passed, but before it was enabled in 1978. So, the song was covered under the 1909 Act, and was granted an initial term of 28 years, plus an opportunity for another 28 years if a timely renewal was filed.

When the time window to file the renewal came up, the joint authors had long previously been assigned to a series of owners. Dreamworks most recently had assigned it on to another assignees finally Dimensional Music Publishing (DMP). The DMP assignee filed the renewal document on January 5th, 2005, which is about as soon after that renewal window opens that anyone can file it.

So, far the facts are fairly standard; and, here is where the anomolous fact comes in: Kersey, one of the two original collaborators and a joint author, both filed a renewal application for the work in his own name; and then died three weeks later. Kersey filed his individual renewal on January 13th, but because Kersey submitted the wrong amount of monies to pay the renewal fees, the renewal was not operative until April 5, 2006.

Why is this a rare combination of facts?

First, because all copyrights expire at the end of a calendar year and the renewal window in which the renewal must be filed extends all twelve months of that renewal window year. Second, although transfer owners eligible to renew the copyrights that the transfer owners has taken by assignment, that right is predicated upon the author being alive when the renewal is effected.

The question of whether the renewal rights vested in DMP in the three weeks before Kersey died is the open issue before Judge Jan Dubois in the Eastern District of Pennsylvia. On July 12th, 2006, the Judge signed an order denying reconsideration of her earlier ruling which made the renewal term vest in the name of DMP. Stay tuned to see if it is appealed. The case is Dimensional Publishing v. Kersey.

This article on page B3 of the New York Times in the July 18th edition is reminscent of the sort of citizen reporting that happened in the McCarthy era. It is Hong Kong this time where young people in otherwise benign organizations are being recruited to report internet sites dispensing unauthorized copies of songs and movies.

The youth reporting is the grass roots end of the chain of reporting that funnels information up to the government. The Customs officials will then verify the internet site and then relay the details on the trade groups such as the RIAA, MPAA and the International Federation of Photographers. The identity of the reporting youngster (average age 11) will be kept secret, or so the Hong Kong government promises.

The Scout Association of Hong Kong reports that this campaign is a great vehicle to teach children good citizenship. The Hong Kong police department defends the campaign saying that it is no different than asking citizens to tell police when they see a crime committed.

A documentary is being filmed. A cell phone rings, playing the “Rocky” theme song. The filmmaker is told she must pay $10,000 to clear the rights to the song. Can this be true? “Eyes on the Prize,” the great civil rights documentary, was pulled from circulation because the filmmakers’ rights to music and footage had expired. What’s going on here? It’s the collision of documentary filmmaking and intellectual property law, and it’s the inspiration for this new comic book. Follow its heroine Akiko as she films her documentary, and navigates the twists and turns of intellectual property. Why do we have copyrights? What’s “fair use”?

The Duke Center For the Study of the Public Domain has this story in a new comic book available for sale or for free download. The Heroine’s name, AKIDO, in this story means ‘the way of harmony’ but the story is anything but the story of harmony….

Berlent v. Focus Features makes the lesson, again, that on the merry-go-round of preliminary injunctions, that old adage, “thems as snoozes loses” never gets stale.

Berlent, a New York composer, sued all the producing parties of the movie, Brokeback Mountain, claiming that the movie theme song was a copyright infringement of Berlent’s own song, “Slow Dance”.

The Southern District of New York never got to the merits, but looked at the timeliness of the filing of the law suit relative to the harm that the action was seeking to prevent. As Berlent filed the action eight months after the first public release of the movie trailer; five months after the soundtrack was released; four months after the movie was released; AND, one month after the Academy awarded “Best Original Score” for the music at issue, the court held that the only rights to be discussed were after a trial. Motion for Preliminary Injuntion denied.

Berlent, in the complaint, acknowledged that he was already in the intolerable position of watching someone else get an Oscar for music that Berlent had written and for which he got no credit. Berlent claims that he only heard the music when a television advertisement presaged the release of the DVD of ‘Brokeback Mountain’.

Pre-emption

Laws v. Sony Music Entertainment, Inc. (9th Cir 5/24/06)

Long ago (1976) in a pre-digital, pre-internet world, Debra Laws, a recording artist, signed a license with Electra Records for Electra to exclusively produce master recordings and to sub-license the resulting recordings.

Fast forward to the digital, internet burgeoning world where Electra licenses to Sony the nonexclusive right ’sample’ from Law’s recordings to integrate those ‘brief samples’ into a Jennifer Lopez DC and music video entitled, “All I Have”. Electra does not communicate or enquire of Law’s inclination to such a sublicense as Electra was the exclusive licensee, and as such was the titular and beneficial owner.

Law, outraged, sued in California state court under much the same analysis that Portia stopped Shylock from extracting his ‘pound of flesh’ pointing out that Shylock could only have a “pound of flesh” without a drop of blood. Law claimed that she had standing in state court under California Publicity Code 3344 which prohibits the misappropriation of one’s voice, image or name.

Electra defended stating that the California Publicity Statute was preempted by the Federal Copyright Law. The Ninth Circuit agree that the California Statute was preempted.

Which just goes to show that Shakespeare is out of step with digital, internet copyright law: You can take the pound of flesh and all the blood you want, if you have an exclusive copyright license. Shylock was way ahead of his time.

Dale Chihuly, thought by many to have only a peer in Tiffany’s Glass Works, has sued two glassblowers who worked over a decade for him at the Chihuly Seattle Glass Works. Chihuly alledges copyright infringement against the two former collaborators claiming that the two glass blowers were merely ’scribes’ of his, Dale Chihuly’s, copyright expression.

Chihuly claims that the two glassblowers have infringed his signature sea images, specifically the lopsided, off center, sea figures and sea gardens for which Chihuly has become famous worldwide.

Son of a Tacoma, Washington butcher, Dale Chihuly has not blown glass for 27 years since two accidents, surfing and automobile, impaired his sight and range of motion. Chihuly authors the images by sketching and other two dimensional renderings of that which he instructs the team of over 50 glass blowers at Chihuly’s enormous, former boat manufacturing house, ‘Boat House’ on Lake Union in Seattle Washington.

This case will frame the copyright doctrine of ‘idea/expression’ and will include the recent 9th Circuit case of Satava Glass in which a glass jellyfish encased paperweight was found uncopyrightable as not expression, but one of nature’s ideas made manifest. On the other side, there will be arguments that some minimalistic expression is so creative and original as to warrant copyright protection, such as Picasso’s spare line drawings.

Just when we were getting comfortable with sorting out the multiple layers of ownership and contribution in the faux Open Source world, the South San Francisco Democrat, Gene Mullin has decided that California needs a state “Office of Intellectual Property”. This new office would act as the broker and auditor of state funded research that leads to patents, copyrights, trade secrets and trademarks.

Bill 2721 specifically does not apply to any of the Stem Cell Research, but would apply to research in agriculture, geothermal resources, breast cancer and other areas. It does not address who would own what when the project is funded by federal or other state’s monies as well.

As one whose grandfather was one of the horticultural genius’s of his age, the idea that plant hybrids are patentable is still a new idea. The idea that a state experimental station researcher’s efforts are now even more complicated in ownership is an even more startling idea. If you haven’t read Michael Pollen’s book “The Omnivores’ Dilemma” you will enjoy reading how he thinks the intellectual property ownership of agriculture should be handled: agribusiness or artisan.

Dorley Kindersley was getting ready to publish a cultural history of the Grateful Dead illustrated with over 2,000 images. Seven images of concert posters were thought to be the perfect chapter heading.

Dorling Kindersley approached the Bill Graham Archives to use the posters; and permission was refused.

Notwithstanding that ‘not only ‘no’, but ‘hell no” answer, Dorley Kindersley made use of the seven same concert images for which it had asked permission, but made use in a different place in the book; a different size; and a different role.

The Second Circuit Court of Appeals in Bill Graham Archives v. Dorling Kindersley (05-2514) ruled on Monday that the Dorling Kindersley’s use of the posters qualified under the Fair Use Defense. The court held:

“This conclusion is strengthened by the manner in which DK displayed the images.” First because the use was substantially smaller than that for which DK had asked; and because the posters graphic was used in the chronological time line which conveyed the historical significance of the graphic art of the posters.

“Overall, DK’s layout ensure that the images at issue were employed only to enrich the presentation of a cultural history of the Grateful Dean, not to exploit copyrighted artwork for commercial gain”.

If you haven’t got a copy of today’s New York Times magazine in which the cover article is

“WHAT WILL HAPPEN TO BOOKS? Readers take heart! (Publisher, be very, very afraid.) Internet engines will set them free.”

You will want to read it. The author isn’t as informed on copyright law or its history as he is on the mechanics of the Google Library Project, but he makes some good points. Among his more contentious concepts is one in which he would impose a quid pro quo for copyright claimants and authors. He calls it the ‘counterbalance’ that is needed to make copyright more like patents (just what we need, huh?). He echoes the best biggest reason, if there is one, for legitimizing the Google Library Project as “Having searchable works is good for culture.” He proposes that the copying be a new ‘covenant’ and be a precondition to a copyright arising. Kelly would call it a “copyduty” that a copyright creator has an obligation to allow the work to be copied for searching purposes. “No search, no copyright”.

No small ambition does Mr Kelly articulate. Not to mention how such a ‘covenant’ comports with international treaties and laws…..

Gregory Colbert, the Canadian film author of “Ashes and Snow”, was watching the Superbowl this year when the frequency of animals in advertising (Clydesdales, monkeys….). Animals seemed the necessary equation to an ad being popular and also represented the closest interaction most people had with animals.

Colbert has called friends far and wide with the result that some are proposing “Animal Copyrights” and some in advertising are agreeing to pay 1% of their media buy to wildlife conservation.

Larry Page, co-founder of Google, is reportedly calling the idea “subversively brilliant”. Colbert promises that advertisers who participate will get an animal rights seal of approval. Here’s hoping that he’s already got the certification mark on file at the PTO and the copyright registration filed for the graphics and manual.

George Gleeson, taking a page from the case of Three Boys Music v Bolton (9th Cir, 2000), claimed that the statute of limitations (3 years) must be tolled for his case as he was unaware of his right to pursue his copyright claim. Gleeson claims to have been the author of the popular dance step ‘moonwalk’ and that Michael Jackson and Quincy Jones stole those specific choreography steps from him..

George Gleeson filed hand written, ‘pro per’ pleading in August of 2005; and documented that he contacted federal officials in 1984 and 1985 about the copyright infringement allegations.

The federal court in Fargo, North Dakota issued summary judgement on behalf of defendants holding the $75 million dollar claim to be time barred:

“Gleeson should have commenced a civil action within three years of when he first contacted the federal officials and became aware of his right to pursue the claim. ”

George Gleeson v. Michael Jackson and Quincy Jones. No. 1:05-cv-088, D. N.D.; 2006 U.S. Dist Lexis 8125.

The Robert Lappin Charitable Foundation retained Gil Baker to produce a documentary dedicated to celebrating the contributions and accomplishments of notable Jews entitled, “Great Jewish Achievers” (JGA). The deal provided that Lappin was to provide specific suggestions, be responsible for all “final decisions” as the movie was Lappins’ “brain child”. Lappin paid $177,500; however Baker sued claiming that the payment was instead to have been funding an unrelated full length film “Bungalow Six”.

Baker sued claiming total ownership of the GJA film and damages of $500,000 both for copyright infringement and failure to fund the “Bungalow Six”. Baker claimed to own the movie as sole author.

The federal trial judge dismissed the action in Gil Baker v. The Robert L. Chappin Charitable Foundation No. 04-Civ-426, S.D. N.; 2006 U.S. Dist. LEXIS 7113 holding that plaintiff and defendant are co-authors and as such, Baker had no standing to sue defendant.

Specifically, the court held that defendant non profit was a copyright author ‘even assuming that Chappin was not present in the editing room when the film was edited, as Baker alleges, the law does not require that joint authors work together in the same place or contribute to every aspect of the project.” That the nonprofit contributed material to the movie that were independent copyrightable contributions which were more than ‘de minimis’ and that were intended to form a ‘unitary whole’ with Baker’s contribution made the work a jointly authored one.

In 1982, the book “Holy Blood, Holy Grail” (HBHG) advanced a centuries old story that Mary and Jesus were married and that their blood line both survives into the present and has a guardian cult. The book, HBHG, was headed into the usual destination: obscurity, when Dan Brown’s “The Da Vinci Code” was published in 2003. In the year before Brown’s book was published, 2002, the total number of copies of HBHB sold in the UK reached 357.

After The Da Vinci Code published, sales of HBHG went up over one thousand times (1,000+). Even with that spike in sales, HBHG did not generate the 77 million dollars in royalties that The Da Vinci Code generated for Brown (that’s just the book sales, not including the movie deal)

Both books are published by the same house, Harper Collins.

The HBHG authors sued Brown for copyright infringement. Brown not only included parts of the centuries old story in The Da Vinci Code, but also cited and gave credit to HBHG.

Last week, the HBHG plaintiffs got a double loss. First the court ruled against them stating that the architecture that Brown took was “not crucial or important text in the creation of “The Da Vinci Code” framework. Then, following the UK tradition of loser pays both parties legal fees, the HBHG plaintiffs will foot 85% of the legal bills of both Brown and Harper which are reported to exceed 2.5 million dollars.

The downside of this case for some of us is Dan Brown’s statement that he can now get back to writing more books.