Peter Yu offers entertainment industry more convincing proposals for digital copyright reform

It isn't often that an academic offers to help the entertainment industry with legal arguments. (The industry, after all, does have paid professional help.) But Drake University law professor Peter Yu says he's done just that. Yu is a highly-regarded professor of IP law and the Director of Drake's Intellectual Property Law Center, so he knows whereof he speaks. His latest article is titled Digital Copyright and Confuzzling Rhetoric, and it appears in the Vanderbilt Journal of Entertainment & Technology Law. His thesis, and offer:
The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists succeed under this alternative compensation model? Over the years, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced many different arguments for or against stronger copyright protection and enforcement. This article examines eight of these arguments, which the author finds rather unpersuasive. It then outlines five strategies that seek to help the entertainment industry make its proposals for digital copyright reform more convincing. The article concludes with two short stories to illustrate the tremendous difficulty for the public to appreciate the complexities in copyright law. It underscores the paramount importance of making convincing arguments in the digital copyright debate.


Jerry Seinfeld and wife's publisher defeat defamation and idea submission claims by cookbook author

Jerry Seinfeld has defeated a defamation claim filed against him by Missy Lapine, the author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals. At the same time, HarperCollins defeated Lapine's claim that it breached an implied contract by publishing Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food written by Sienfeld's wife Jessica. The decision of the New York state court in which these claims were rejected is reported upon (and linked to) in Loeb & Loeb's IP/Entertainment Law Weekly Case Update.


Patents in the music industry

I've always thought of music as the quintessential copyright industry. Trademark law plays a role too, in connection with band and company names. But patent law? The connection between patents and music passed me by, as it apparently did others as well. In a post titled Patents in the Music Industry: An Underutilized Competitive Advantage, Bryan Jaketic, an associate in the Benesch law firm, notes how few patents have been sought by music equipment manufacturers, and says that "This ambivalence towards patents is akin to a music publisher only registering copyrights for a fraction of its catalog." (If you or your clients are music publishers or record companies, you'll be relieved to note that Mr. Jaketic focuses on the value of patents for music equipment manufacturers. It doesn't appear that publishers or record companies need patent lawyers, yet.)


Righthaven copyright cases reviewed

Righthaven LLC has filed hundreds of copyright infringement lawsuits against websites, bloggers and online forums, in little over a year. The lawsuits have spawned a website of their own, aptly titled Righthaven Lawsuits, where you can find countless links to case filings and news.

In a post titled The Righthaven Lawsuits: What is Fair Use of Online Publications?, Jeff Neuburger of Proskauer Rose reviews the legal issues that have been addressed so far, in written judicial opinions.

Impact of digital technology on earnings of visual artists

Thoughtful people are able to imagine consequences, with just a modest amount of information about causes. It's a sign of intelligence, and the reason that some folks succeed. On the other hand, it's better to have more data than less. And for those interested in the impact of digital technology on the earnings of visual artists, more data is now available - a great deal more. Martin Kretschmer and Sukhpreet Sing of Bournemouth University, and Lionel Bently and Elena Cooper of Cambridge University, have published Copyright Contracts and Earnings of Visual Creators: A Survey of 5,800 British Designers, Fine Artists, Illustrators and Photographers. It's 178 pages of data, charts and analysis; and their findings are unexpected if not downright surprising:
There is a common perception that digitisation has prompted changes in creative labour markets. In particular, it is widely assumed that exploiters insist on "grabbing rights" (i.e. broadly conceived assignments of rights), that visual artists are not able to negotiate, that they are paid less and less, and that they are compelled to waive their moral rights. This study suggests a much more equivocal picture. In place of a straightforward narrative of decline, the results of the survey suggest that in most fields there has been less change over the last decade than one might have expected: that, terms of exploitation are most often about the same. That is not to say that there are no discernible changes in particular occupations and media. Respondents and interviewees identify some important shifts. Perhaps surprisingly, it seems there are changes in practice that are, from the creator's perspective, both positive and negative. The most positive change is identified amongst the fine artists where half (50%) see their personal bargaining position as having improved, with only 6% perceiving a weakening. The most disturbing changes are in relation to photographers. About half of all photographers (49%) say their bargaining position has worsened, with only 22% reporting improvements. A significant percentage of photographers (40%) report an increase in assignments (compared with 6% who think they have decreased). Moreover, 24% report an increase in moral rights waivers (compared to 3% who identify a decrease), and a decline in the practice of attribution. 31% of photographers see attribution as decreasing over the last decade, and only 8% increasing. 28% say income from secondary use has decreased, while only 16% say it has decreased.


Court stops online streaming TV service

ivi, Inc. is a Seattle company whose website homepage features a banner headline reading "Watch Live TV Online." Not free, mind you. A couple of pages into the sign-up process, the site reveals that the price is $4.99 a month. Still, that's less than cable or satellite TV service, and that must have been part of ivi's competitive business plan. I use the past tense, because a federal court in New York City has issued a preliminary injunction, baring ivi from continuing to stream TV broadcasts without consent, which so far, ivi does not have. Kathleen Kirby and Ari Meltzer of Wiley Rein explain (and link to) the court's decision.

Public TV and radio: the financial conundrum

It costs money to produce programs for public TV and radio. But public broadcasters aren't at liberty to sell advertising the way commercial broadcasters do. Noncommercial broadcasters are bound by FCC underwriting rules, compliance with which is not an easy task.

A lot has changed in this area of the law, since I wrote about then-existing FCC rules back in 1984, in a two-part article titled Producing for Public Television (still available here and here).

David Oxenford, of Davis Wright Tremaine, recently put on a seminar for public broadcasters in Maine and Connecticut, during which he explained the current state of the rules for underwriting noncommercial broadcasts. His seminar slides and related articles are posted on his firm's Broadcast Law Blog. The rules are the same throughout the U.S., so if you or your clients produce for, or are, public broadcasters in the other 48 states, take a look.


Digital music consumers as unintended copyright infringers: the problem and a proposed solution

Saint Louis University law school professor Yvette Joy Liebesman has written Downstream Copyright Infringers. Here is her description of the problem she has identified, and the solution she proposes:
The advent of on-line music sales has been a boon to the recording industry as well as for musicians and the general public. Previously unknown artists have found new avenues to showcase their work, and consumers have easy access to an enormous variety of musical genres. Yet an unintended consequence of the ability to sell songs through internet downloads is a novel, and until now, unnoticed way to infringe on copyrights - which, unless remedied, could lead to new classes of defendants never contemplated or desired to be ensnared in the Copyright Act’s protections for artists, musicians and authors. Unlike a brick-and-mortar transaction, the act of purchasing a song on the web requires that the purchaser “download” a digital file of the song - that is, make a copy of the song that is located on the vendor’s website, and transfer that copy to the consumer’s computer. In this on-line transaction, consumers are availing themselves of one of the rights of the copyright owner, namely the reproduction right. Of course, by making songs available for purchase via download, the copyright owner is authorizing such a reproduction. But if the downloaded song is in fact infringing on another’s musical composition copyright rights, this new method of purchasing music turns ordinary consumers into unintentional infringers. When a consumer downloads a song from a legitimate music store such as iTunes, she tacitly assumes that the song is not infringing on the musical work of another. If, however, the song is infringing on the copyright of another musical composition, then the consumer has made an unauthorized copy and infringes on the infringed-upon musician's reproduction right. It is only a matter of time before members of the recording industry grab onto this form of infringement and demand compensation from unsuspecting consumers. Copyright infringement is a tort of strict liability and courts would thus be constrained in their ability to give relief to consumers who infringe in this manner. This article argues that rather than wait for litigation to commence, Congress should consider legislating an exception for consumer downstream infringement that was neither contemplated nor desired when the Copyright Act was passed.

Recent decision: 9th Circuit says "Betty Boop" is not a trademark

Locke Lord's QuickStudy on Trademark Practice reports on (and links to) a recent decision by the Ninth Circuit Court of Appeals that held that the image of the cartoon character "Betty Boop" is not a trademark, when used on merchandise whose customer appeal is the image itself. In commentary critical of the court's 2-1 decision, Thomas Casagrande, Michael Schulman and Paul Van Slyke point out that the decision jeopardizes the trademark status of sports team and league logos, as well as cartoon characters.


Digital media music licensing

David Oxenford and Rob Driscoll, of Davis Wright Tremaine, recently made a presentation to the Texas Association of Broadcasters about the business and legal issues that surround the licensing of music for use in digital media. In a post in the firm's Broadcast Law Blog, they've made available their presentation slides, a memo on the "Basics of Music Licensing in the Digital Media," and details of the deal that broadcasters made with SoundExchange for internet radio streaming.

Work-for-hire doctrine in the context of high-tech startups and virtual companies

Jon Garon (of Hamline Law School) and Elaine Ziff (of Skadden Arps) have written The Work-Made-for-Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship. Their point:
Often, a copyrighted work is not created by one or even two authors but, instead, by a multitude of authors. Corporate brochures include text drafted by copywriters working in conjunction with other staff members, graphic designers, photographers and others. Most business works are created as a work made for hire, which vests the copyright in the employer rather than the employee. In most situations, the employment relationship will depend on an existing common law agency relationship between the parties. If an employer-employee relationship cannot be established, then the work for hire doctrine may still have a role for those works that fall into enumerated categories, as long as a proper written agreement is executed by both parties. With the advent of high-tech start-ups, virtual companies, and recent economic tensions, the courts have been rethinking the traditional rules developed by the Supreme Court in Committee for Creative Non-Violence v. Reid. Under these high-profile decisions, the common law rules of agency have been reconsidered and business owners need to adjust their practices to respond to this new reality.


Sports law updates: Dodgers owners' divorce; NBA buys Hornets; athletes' name rights

Herrick Feinstein has published the Winter 2011 edition of its Herrick Quarterly Sports Update featuring these articles by Herrick attorneys Irwin A. Kishner, Barry Werbin and Matthew Pace:
  • Not-So-Artful Dodgers
  • NBA Takes Possession of New Orleans Hornets
  • What's In a Name?

Predicting copyright fair use

I've always thought that copyright's "fair use" factors are little more than a guide for lawyers to organize their arguments (and judges to organize their decisions). In my opinion, those factors are not a useful tool for successfully predicting, in advance, whether any particular use will be deemed fair or infringing. Loyola of Chicago law professor Matthew Sag has a different opinion. He thinks some factors do lead to predictability, and he explains why in an article titled Predicting Fair Use. The abstract:
Fair use is often criticized as unpredictable and doctrinally incoherent - a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on the characteristics of copyright litigation that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny. This study finds that commercial uses are not disfavored in fair use cases, nor is the unauthorized use of unpublished or creative works. In contrast, complete copying by the defendant does appear to be a significant predictor that the defense of fair use will fail. This article also presents empirical evidence that transformative use, or at least specific kinds of transformations, makes a finding of fair use more likely. This article concludes that, based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed. The fair use is more than simply the right to hire a lawyer and take one’s chances in court.


Brazilian court awards privacy damages to secondary character in book and movie based on a true story

A Brazilian appeals court has awarded the equivalent of $6,000 to a secondary character whose privacy was invaded in the book and movie "Meu Nome Nao E Johnny" ("My Name Ain't Johnny"). The book's author and publisher had obtained the consent of the story's main character, but not from the character who sued and won. The case is noted by Brazilian entertainment lawyer Rodrigo Borges Carneiro in Entertainment Law Brazil, an English-language blog that he publishes with his colleague Atillio Gorini (who is a Southwestern Law School LLM graduate).


Harvard Journal of Sports & Entertainment Law publishes new issue

The latest issue of the Journal of Sports & Entertainment Law, published online by students at Harvard Law School, features these articles:
  • Political Recording of the Contemporary Celebrity and the First Amendment, by David Tan
  • Antitrust & The Bowl Championship Series, by Nathaniel Grow
  • Caught in the Copyright Rye: Freeing First Amendment Interests from the Constraints of the Traditional View, by Arlen W. Langvardt and Tara E. Langvardt
  • Biting the Hand That Feeds: Why the Attempt to Impose Additional Performance Fees on iTunes Is a Search For Dollars Without Sense, by Jesse A. Bland
  • The Americans With Disabilities Act, The United States Anti-Doping Agency, and the Effort Toward An Equal Opportunity: A Case Study of the United States Anti-Doping Agency v. George Hartman Matter, by Travis Tygart and Anthony R. Ten Haagen


Copyright and political campaigns in Canada

The intersection of copyright law and political campaigns in the United States has been noted twice before, here and here. Now, the unauthorized use of copyrighted works by political campaigns in Canada has attracted attention. David Kluft has posted Not Quite Fair Use: Canada's Fair Dealing Exception to Copyright Infringement in the Political Spotlight on Foley Hoag's Trademark & Copyright Law blog.


UK developments: TV product placement; sports

In a post titled Ofcom Launches New Product Placement Logo, SNR Denton, in London, notes that Ofcom - the UK communications office - has just permitted, for the first time, product placements in UK-produced television programs.

Scotland's Morton Fraser has published the latest edition of its Sports E-Bulletin, featuring these articles:
  • Yellow Card or Just a Quiet Warning?
  • Liability for Sporting Injuries Sustained on the Field of Play - What's the Score?
  • How Scotland's "Right to Roam" Legislation Affects Sports Clubs
  • The Bribery Act 2010 Arrives At a Time When Bribery in Sport is Already in the Spotlight: What Impact will it have for Clubs?
  • Do Extreme Sports Come With Extreme Liability?
  • Around the Courts...


Recent developments in sports law

The sports law group at Proskauer Rose has begun publishing the newsletter Three Point Shot, edited by Robert Freeman. The first issue features these articles:
  • Wrestlemania in Bedrock City
  • Tackle Football Players Beware, and
  • This is Not Your Grandfather's Protective Padding.


Privacy rights of biopic characters

Boston lawyers Mark Fischer and Franklin Levy have posted an interesting article titled Privacy Rights and Celebrities: Truth, Fiction and Biopics on the DuaneMorris website. They ask:
How much can real people be fictionalized in the movies? Two recent films make that point—The Social Network and All Good Things. Though these movies often blend truth and fiction, the legal implications that can result are very real. This article will examine the privacy rights of those public figures whose lives are portrayed before the camera and in the written word. What legal defenses are available, and what is the likelihood of a favorable outcome for the real people in these cases?