Recent thoughts on European copyright

Columbia law professor Jane Ginsburg has written European Copyright Code - Back to First Principles (with Some Additional Detail). In her abstract, she explains:
The "Wittem Group" of copyright scholars has proposed a "European Copyright Code," to "serve as an important reference tool for future legislatures at the European and national levels." Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright secures, and of the goals that a copyright system should serve.

The following commentary will reproduce the provisions of the proposed Code, together with annotations of particular articles. The proposed Code contains five chapters: (1) Works; (2) Authorship and Ownership; (3) Moral Rights; (4) Economic Rights; (5) Limitations. The text provides neither for remedies, nor for voluntary formalities. It also does not address neighboring rights. The five chapters vary in ambition, from cautious synthesis to radical prescription. If some timidity characterizes the chapters addressing authors’ rights, the hallmark of the chapter on limitations is its temerity, displaying an impetus to break through the rigidity of the current EU and national systems of copyright exceptions in order to favor EU-wide uses of copyrighted works in which, in the drafters’ perception, the interests of third parties, including the public, outweigh those of the authors or copyright owners. Reaction to the Wittem endeavor may turn at least in part on one’s assessment of whether the drafters have correctly stated and/or weighted the third party interests.
Queen Mary University law professor Jonathan Griffiths also comments on European copyright law in Unsticking the Centre-Piece – The Liberation of European Copyright Law?. The abstract:
Following European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to member states has been greatly diminished. The law in this area is increasingly incapable of accommodating any expansion in the scope of freely permitted acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model similar to s 107 of the United States’ Copyright Act – has not received the serious attention it deserves. The fair use paradigm has generally been dismissed as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential for the development of a European fair use model merits investigation.


"Harry Potter and the Goblet of Fire" does not infringe the copyright to "The Adventures of Willy the Wizard"

United States District Judge Shira Scheindlin has found that Harry Potter and the Goblet of Fire, the fourth book in the Harry Potter series written by J.K. Rowling, is not substantially similar to an illustrated childrens book titled The Adventures of Willy the Wizard - No 1 Livid Land by the late Adrian Jacobs. As a result, Judge Scheindlin has granted a defense motion to dismiss the case without trial. The decision has already attracted legal comment on both sides of the Atlantic.

In the U.S., it is noted (and linked to) by Loeb & Loeb. In the UK, it is noted by Shepherd and Wedderburn. The Shepherd and Wedderburn report also compares Judge Scheindlin's opinion to an earlier decision of the UK High Court of Justice, in an identical case involving the same books and parties. In that case, Chancery Division Justice Kitchin denied a defense motion for summary judgment, even though he concluded that "it is improbable" that the infringement claim will succeed.

The legal test by which infringement is determined is very similar in the United States and the UK. But the standard for granting or denying motions to dismiss and summary judgments is different. That difference is what explains the differing outcomes in the two cases so far, though ultimately it is all but certain that J.K. Rowling and her British publisher will prevail in the UK as well.


Recent decisions: "Don't Mess with Zohan" attorneys' fees; Copyright Act's written memo requirement

The January 19, 2011, edition of Loeb & Loeb's IP/Entertainment Law Weekly Case Update for Motion Picture and Television Networks reports on (and links to) two recent copyright decisions of interest:
  • Cabell v. Sony Pictures Entertainment, in which a federal District Court in New York City awarded the producers of "You Don't Mess with the Zohan" only $1,000 in attorneys fees, because of the plaintiff's financial circumstances, even though the producers defeated the plaintiff's claim that their movie infringed the plaintiff's copyright. 
  • Barefoot Architect, Inc. v. Bunge, in which the Third Circuit Court of Appeals held that the written memorandum that the Copyright Act requires in order to transfer copyright does not have to be contemporaneous in order to validate a prior oral transfer of a copyright, though there must be extrinsic evidence demonstrating that the prior oral transfer actually took place. The case itself is not an entertainment case - it involved an architect - but the issue is one of importance to those in the movie business.

European Court of Human Rights considers conflict between privacy rights and press freedom in Naomi Campbell and Max Mosely cases

The European Court of Human Rights began the new year by considering the conflict between the right to privacy and freedom of the press, in two separate cases. On January 11, 2011, it issued its written decision in a case involving super-model Naomi Campbell. That same day, it heard oral argument in a case involving Max Mosely, the former president of the Formula One auto racing organization.

The conflict considered by the Court in these two cases is the conflict between the right to respect for private life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to freedom of expression guaranteed by Article 10 of the Convention.

Both cases began in British courts where Campbell sued The Mirror for invading her privacy, and Mosley sued News of World for invading his. Campbell and Mosely both won their cases, though she was more satisfied with her victory than he was. As a result, The Mirror pursued the Campbell case to the European Court of Human Rights where it argued that UK law violated its Article 10 free expression rights. And Mosley himself took his case to the Human Rights Court, arguing that UK law violated his Article 8 privacy rights.

In the Campbell case, the UK House of Lords ruled - as reported by the Entertainment Law Reporter back in 2004 (at page 12) - that The Mirror invaded Campbell's privacy by reporting that she was being treated for drug addiction. The House of Lords upheld the quite modest £3,500 judgment that had been awarded to her by a trial court. Under British law, Campbell also was entitled to recover her costs, including attorneys fees. Those came to a whopping £850,000, including £365,000 in "success fees" she had agreed to pay her attorneys if they won, as they did. The Mirror thereafter settled the case for £500,000. But the settlement didn't deprive The Mirror of its right to pursue a claim against the UK itself, before the European Court of Human Rights, alleging that UK law violated the Human Rights Convention. In its January 11th decision in  MGN Ltd. v. United Kingdom, the Human Rights Court held that the invasion of privacy judgment (called "breach of confidence" in UK law) did not violate The Mirror's Article 10 free expression rights, but the "success fees" portion of the cost-judgment did. (The case isn't quite over yet, because of a dispute over how much of the £500,000 settlement was payment towards the "success fees.")

In the Mosley case, the former Formula One head was awarded £60,000 for the invasion of his privacy by a News of the World article headlined "F1 boss has sick Nazi orgy with 5 hookers." The opening sentence of the article read, "Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert." And, as if the article weren't bad enough, the News of the World's website featured video of the sex activities in which Mosley and others had participated. Mosley had sought more than the £60,000 he was awarded; he also asked for punitive damages, but didn't get those from the UK court. In his case against the UK before the Human Rights Court, Mosley doesn't complain about not getting punitive damages. Instead, he has argued that UK law violates Article 8 of the Human Rights Convention, because UK law did not require News of the World to inform him it intended to publish the offending article and video before doing so, thereby depriving him of the opportunity to seek an injunction barring their publication. On January 11th, the Human Rights Court heard oral argument in the case, a video recording of which is available at the Court's website.


Screenwriter ordered to pay $900,000 to "Monster in Law" producers, after they defeated her copyright infringement claim

The producers of the Jennifer Lopez/Jane Fonda movie "Monster in Law," have emerged victorious from a lawsuit that alleged that the movie infringed the copyright to a screenplay titled "When Mom Is the Other Woman" written by Sheri Gilbert. The defendants' victory goes considerably beyond defeating  Gilbert's copyright infringement claim. It includes an order that requires Gilbert to pay the producers almost $900,000 for the attorneys' fees they incurred in their successful defense of her claim. The court's order is commented on (and linked to) by Eriq Gardner in THR,Esq.

Payroll company not joint employer of crew member employed by tv production company

The latest issue of Proskauer's California Employment Law Notes notes that in Futrell v. Payday Cal., Inc., the California Court of Appeal has held that Reactor Films' payroll company, Payday California, was not a joint employer of crew members who worked for Reactor, a TV commercial production company. This meant that the payroll company was not liable to crew members who alleged they had not been paid required overtime.


Workers comp for pro athletes; criticism of Bowl Championship Series

Arent Fox has posted three articles of interest to sports lawyers (and law students looking for seminar or law review topics):
  • Professional Sports: Which Rules Apply When the Action Moves to the Courtroom?, by Stewart Manela, is a good introduction to the question of whether professional athletes are entitled to workers compensation benefits under state law. That question has produced a lot of litigation. (For published opinions on the topic, search for "workers compensation" in the Back Issues: 1978-2007 section of this website.)
  • The Truth About the BCS and The BCS’ 22 Tall Tales, both by Alan Fishel, criticize the Bowl Championship Series' methods for determining the college football national champion. As Fishel discloses up-front, Arent Fox represents the Mountain West Conference and Boise State University which have a beef with BCS (for reasons that are well-understood by those who follow college football more closely than I). In other words, these two articles are advocacy pieces and are intended to suggest that the BCS violates federal antitrust law.

k.d. lang wins case against former manager

A British Columbia Court of Appeal has enforced a $1.9 million default judgment that recording artist k.d. lang obtained in a breach of fiduciary duty lawsuit she filed against her former manager in California. A report about (and link to) the Canadian court's decision has been posted by Peter Roberts of Lawson Lundell in Vancouver.


Copyright in works created by employees, in the U.S., Germany and Colombia

Ownership of Copyright in Works Created in Employment Relationships: Comparative Study of the Laws of Colombia, Germany and the United States of America, by Jose Roberto Herrara Diaz, has been published (in English) by Revista la Propiedad Inmaterial. From the abstract:
The ownership of . . . works [created by employees] has been regulated in different ways by the national laws of each country, and the only attempt [at] . . . harmonization has been . . . in the European Community regarding computer programs created in the course of employment. . . . Germany and United States have regulated the subject in their respective national copyright laws. In other countries, such as Colombia, lawmakers have established a legal rule regarding the ownership of moral rights in copyrighted works, but [they have] not define[d] a clear rule on the important issue of the economic rights in such works. This ambiguity has caused legal uncertainty [about] whether these types of rights belong to employees, private contractors, freelancers or employers. . . . [T]his paper [is] a comparative study of the laws of Colombia, Germany and the United States of America.

Hat tip: Media Law Prof Blog

Domain name seizures - the debate continues

One of the great things about online publication - as contrasted with printed law reviews - is that debates can happen in real time. Case in point: the debate about the legality the seizure of the domain names of websites that are used to distribute copyright-protected works, without being licensed to do so. Terry Hart responded to criticisms of such seizures, quite persuasively I thought, in a previously-noted Copyhype post. His post prompted rebuttal at techdirt, to which Hart has posted a sur-rebuttal. The debate is invigorating not just because the topic is important and timely, but also because it's laced with actual legal argument, based on real legal authorities - not simply the slinging of raw opinion and invective. Which isn't to say the debate is appellate-brief like. Not at all. It shows that legal argument doesn't have to by dry-as-dust; it can actually be a pleasure to read.


"Libel tourism": the British provocation and the American response

London has been called the "libel capital" of the world and a "libel tourism" destination. I mentioned this last month, as an introduction to comments about a recent decision of the Supreme Court of the United Kingdom that chips away at the advantages of filing defamation suits in London, and a 2010 statute passed by Congress designed to negate that advantage entirely. Now, for those who'd like to read a more in-depth analysis, Indiana University law professor Andrew Klein has published a law review article titled Some Thoughts on Libel Tourism. He explains that:
. . . "libel tourism" [is] a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. A number of commentators have discussed libel tourism at length, and this paper does not provide a treatise on the topic. Rather, it reviews recent reactions from legislators, courts, and commentators, and then offer some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the essay concludes that U.S. attempts to address the issue of libel tourism have been quite broad, and suggests a more cautious approach that would better contribute to maintaining America’s role as a leader in the evolving world of tort law.

European Commission recommends copyright registration

The Pinsent Masons blog Out-Law.com notes (and links to) a 45-page European Commission report that recommends that copyright owners register their rights with the EU, in order to avoid the creation of "orphan works." How ironic is that? Europeans (and others) criticized the United States for decades, because U.S. law required copyright registration until the U.S. joined the Berne Convention and eliminated the registration requirement (for foreign works). Could it be that registration was a good idea, all along?


College coaches, pro coaches, law and lawyers

Dan Fitzgerald, at the Connecticut Sports Law blog, explains why When the NCAA Calls, Coaches Need Personal Counsel.

The Sports Law Blog calls attention to the publication of Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL, a new book by Temple law professor N. Jeremi Duru.

More on the "World of Warcraft" play-by-bot case

The Ninth Circuit's decision in MDY v. Blizzard Entertainment - the "World of Warcraft" play-by-bot case - is a comment magnet. In addition to those noted earlier (here and here), these are the latest:


New edition of Harold Vogel's "Entertainment Industry Economics" now available

Cambridge University Press has just published a new edition - the 8th - of Harold Vogel's Entertainment Industry Economics: A Guide for Financial Analysis. The book has long been an essential text for those who have wanted to understand the economics behind the business, lawyers included. According to the publisher, this new edition - which weighs in at 680 pages -
differs from its predecessors by inclusion of a new section on the legal aspects and limitations common to all [entertainment] industries, reference to the emerging field of the psychology of entertainment, partial restructuring and expansion of the music chapter, enhancement of the section on advertising, and broadening of the coverage in the gaming and wagering chapter. The result is a comprehensive, up-to-date reference guide on the economics, financing, production, and marketing of entertainment in the United States and overseas. Investors, business executives, accountants, lawyers, arts administrators, and general readers will find that this book offers an invaluable guide to how entertainment industries operate.

First Sale Doctrine authorizes sale of promotional music CDs

The Ninth Circuit Court of Appeals has held that the U.S. Copyright Act's "First Sale Doctrine" permits the sale of promotional music CDs on eBay and elsewhere, even over the objections of the record companies that distribute those CDs and own their copyrights. The court's recent decision in UMG Recordings v. Augusto is noted (and linked to) by Eriq Gardner at The Hollywood Reporter's blog, THR, Esq., and in Loeb & Loeb's Music Law Weekly Case Update for Music Industry Executives. Bob Tarantino notes the case as well, and adds a comment on its relevance in Canada, in the Henaan Blaikie Entertainment & Media Law Signal.


Christo; transfer taxes; the Super Bowl; and Congress

Sheppard Mullin's Art Law Gallery Blog features:In Davis Wright Tremaine's Broadcast Law Blog:

Chinese copyright law on copyrights as collateral and music piracy

The copyright law of China - which is still a relatively young thing - has  attracted recent attention (in print).
. . . explores the history of Chinese copyright law as it has been shaped by Confucian political culture, and discusses the socioeconomic factors hindering the effective enforcement of China’s modern copyright regime. Additionally, it reveals that the ex-post legal strategy utilized to combat music piracy in China has compounded the enforcement issues due to its insensitivity to such cultural norms.


U.S. movie production incentives extended

The United States doesn't offer movie producers incentives as dramatic as those offered, say, in Canada. But section 181 of the Internal Revenue Code does provide producers with some benefits by allowing them to take certain deductions, under certain circumstances. Section 181 expired at the end of 2009. But Congress recently "extended" the section through the end of 2011. Why "extended" rather than "reinstated"? Because Congress made the extension retroactive to the beginning of 2010. Nice, you might say. But some have asked whether section 181 really is valuable to producers, or not so much. Los Angeles lawyer Jonathan Handel explores this question in Production Tax Incentives Extended, but Should Hollywood Care?

EC approves News Corp's acquisition of BSkyB

The European Commission has approved the acquisition of BSkyB by News Corp, after concluding that the $12 billion transaction will not affect competition in Europe. The Commission's action has been noted by Mayer Brown and by Paul Weiss.


Impact of digitization on entertainment lawyers

Connecticut lawyer James Walker Jr. has written about the "extinction of the CD." In Digital Explosion Changes Landscape for Entertainment Lawyers, Walker - who is the author of This Business Of Urban Music - observes that
With declining sales and the rise of digital downloading through iTunes and other outlets, we soon may refer to the CD in the same manner as we do the audio cassette, 8-track and vinyl record: outdated and an antique.
He then outlines the consequences of this development, for entertainment lawyers.

Federal Communications Law Journal publishes new issue

A new issue of the Federal Communications Law Journal is available online. Published by Indiana University law school and the Federal Bar Association, Volume 63 Number 1 contains these articles:

Essays from Time Warner Cable's Research Program on Digital Communications


Recent decisions: movie plagiarism cases involving "Stomp the Yard" and "Flushed Away"; Mattel vs Bratz dolls

The current issue (1/5/11) of Loeb & Loeb's IP/Entertainment Law Weekly Case Update reports on (and links to) three recent decisions by federal District Courts in California:
  • Clements v. Screen Gems, in which the court dismissed a copyright infringement lawsuit, without trial, because the court found that Screen Gems' movie "Stomp the Yard" did not infringe the copyright to the plaintiff’s movie “Steppin.”
  • Buggs v. Dreamwords, in which the court dismissed a copyright infringement lawsuit, without trial, because the court found that Dreamworks' movie "Flushed Away" was not substantially similar to the protectible elements in the plaintiff's screenplay for "Critter Island."
  • Mattel v. MGA Entertainment, in which the court dismissed Mattel's copyright infringement claims based on "second generation" Bratz dolls, but denied both companies' summary judgment motions on two other issues: whether "first generation" Bratz dolls infringe Mattel copyrights; and whether Mattel's confidentiality agreement applies to ideas.

Supreme Court denies cert in digital music price-fixing case

The United States Supreme Court has declined to hear an appeal by Sony Music, Vivendi, Warner Music and EMI, in Sony Music v. Starr. The case involves an antitrust claim by consumers who allege that the music companies illegally agreed with one another not to sell digital music for less than 70 cents per song. The case has not yet gone to trial. Rather, the record companies sought to have it dismissed, even before discovery. But the Second Circuit Court of Appeals ruled that the consumers' complaint was sufficiently detailed to adequately allege an antitrust violation. And that is the decision the Supreme Court decided not to review.


"Hot news" doctrine may be making a comeback

In a post titled Careful, That News May Be Hot! Digital Era Heightens Interest in "Hot News" Protection, Goodwin Procter's David Young notes that
Recent court decisions and Federal Trade Commission ("FTC") proceedings demonstrate a reawakened interest in legal protection of "hot news" – not subject to copyright protection – where an online aggregator, blogger or other secondary content disseminator makes some use of news stories or other content produced by a news organization or other content provider.
This possibility is of interest to sports lawyers - not just those in journalism - because the doctrine was the one that the NBA tried to use to prevent Motorola from distributing real-time game stats.

Facebook settlement of idea case

Curious about the terms of the Facebook settlement with the founders of ConnectU - the idea misappropriation case that was at the heart of the movie "The Social Netword"? A post by Liz Gannes at All Things Digital links to briefs (in a follow-on case concerning the settlement) that reveal some details.


Title insurance for fine art

Title insurance has been a routine requirement in real estate transactions forever (or at least as long as I can remember). Now title insurance is being used in fine art transactions too. Art Market Monitor interviewed Judith Pearson and Lawrence Shindell, the founders the art title insurance company, ARIS, on how this came about. An audio recording of the interview is available here.

Hat tip: The Art Law Blog 


Copyright reform in Canada

Sara Bannerman - a Fulbright visiting scholar at the Elliott School of International Affairs at George Washington University and a post-doctoral fellow at the Centre for Governance of Knowledge and Development at the Australian National University - has contributed a chapter titled Copyright: Characteristics of Canadian Reform to the recently published book Canadian Copyright and The Digital Agenda: From Radical Extremism to Balanced Copyright (edited by Michael Geist). From the chapter abstract:
The current Canadian copyright reform initiative can be viewed in light of a number of trends that have characterized Canadian copyright reform since the time that Canada’s first copyright Act was put in place in 1868. Most importantly, Canadian copyright has always taken place in the context of the push and pull of international pressures. Domestic and international demands often conflict, and there is often significant resistance within Canada to demands for reform coming from outside the country. While in the early days of Canadian copyright such conflict resulted in rebellion against Imperial and international copyright norms, this type of conflict has been replaced by a slow and relatively obliging tendency in reform, generally involving unhurried progress, minimalist adhesion to international treaties, and carving out made-in-Canada approaches. Although there have been instances where Canada has stepped into the role of a leader on international copyright, that position has been quickly abandoned and leadership left to stronger powers. In general, made-in-Canada approaches result in innovative policy solutions on narrow issues alongside a general acquiescence to the visions of copyright forged in international institutions and larger countries.

Comic books, copyright, creativity . . . and law reviews

UC Davis law professor Keith Aoki has made history (I think). His law review article Pictures within Pictures - to be published in the Ohio Northern Law Review - is, quite literally, a 14-page comic strip. He describes his creation as "a meditation on the creative process, copyright law, and comic book history."


ABC defeats FCC in "NYPD Blue" indecency case

David Oxenford, in the Davis Wright Tremaine Broadcast Law Blog, reports on (and links to) a Second Circuit Court of Appeals decision that has vacated a $27,500 fine the FCC had imposed on ABC to penalize the network for a pre-10 pm broadcast of "NYPD Blue" that showed a woman's naked buttocks for less than 7 seconds.

Top 10 sports law stories of 2010

Dan Fitzgerald has posted the top 10 sports law stories of 2010 at his Connecticut Sports Law blog. For readers who may have forgotten the details (or for students looking for law review or seminar topics), his picks include links to past articles. Here is his lineup:


Trademark fair use and parody: a reform proposal

The University of Michigan Journal of Law Reform has published Protecting Nominative Fair Use, Parody, and Other Speech-Interests by Reforming the Inconsistent Exemptions from Trademark Liability, a Note by New York City lawyer (and University of Michigan Law School grad) Samuel M. Duncan. The abstract:
Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for “speech-interests” are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are “protected” by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor for speech-interests in the Lanham Act. This reform will give full effect to the policy behind these exemptions: that if they apply, the public ought to be able to freely use a trademark in discourse. This reform also furthers the Lanham Act’s purpose of establishing a uniform system of nationwide trademark protection by endorsing the simple principle that a given use of a trademark should be either consistently protected from or vulnerable to suit in every court and under every cause of action.


Top 10 Canadian entertainment & media law stories of 2010

Bob Tarantino closed out 2010 at Heenan Blaikie's Entertainment & Media Law Signal by offering his take on the year's Top Ten Canadian Entertainment and Media Law Stories.

Top 10 art sales of 2010

Bloomberg News focuses on business, rather than law. So it ended 2010 with an article about the top 10 art sales of 2010 - rather than art law cases - titled Picasso Nude Beats Giacometti, Chinese Vase in 2010’s Top Sales. The prices ranged from $48.8 million for a bronze relief by Henri Matisse to $106.5 million for a painting by Pablo Picasso. On the theory that when that much money is involved, lawyers were too (or should have been), the story will be of interest to art lawyers and perhaps others as well.