Posts Tagged ‘copyright’

Ray Lehmann on “Blurred Lines” case

While musical copying, and copying lawsuits, are nothing new, Ray Lehmann finds “different” and “potentially problematic” a jury’s $7.4 million verdict “against Robin Thicke and Pharrell Williams, asserting the pair’s 2013 smash ‘Blurred Lines’ borrowed inappropriately from the 1977 Marvin Gaye song ‘Got to Give It Up.'” [R Street Institute] More: Ann Althouse.

P.S. Tim Hulsey commenting on Overlawyered’s Facebook page (which you’ve liked, right?): “If this decision had been in force during the 1940s, nine-tenths of ‘be-bop jazz’ would never have occurred — no ‘Donna Lee,’ no Thelonious Monk, no 12-bar blues.” And @terryteachout on Twitter: “I now see that the judge instructed the jury to go by the sheet music only. If that’s the applicable standard, the verdict will definitely be reversed.” More: David Post.

Those “Selma” speeches? Not by King

Jonathan Band, Disruptive Competition Project:

…the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history. … [Under existing precedent] DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate.

Earlier on the Martin Luther King Jr. estate here and here.

More: reader J.B. writes:

Note that even without the hard-to-defend serial legislative extensions of copyright term for existing works, copyrightable MLK stuff from 1965 would still not be in the public domain under the rules as they then existed (assuming, as seems plausible, that the estate had remembered to renew), although that wouldn’t be all that far off (2021, or maybe 1/1/2022).

Beyond that, here’s the thing: the exact boundaries of fair use are fuzzy because the doctrine as it has evolved is very fact-driven and context-specific. This means that aggressive rights-holders can, by a threat to litigate, probably chill some unauthorized uses that would be legitimate (and there must be some situations that go the other way, where the derivative user is well-funded and lawyered-up and the under-resourced rights-holder can’t afford to have the fight even though they might well be in the right). But it seems at least possible that any crisper/cleaner doctrine (where the boundary of what the rights-holder can forbid was so clear that no one would be chilled/intimidated by an over-the-top cease and desist letter) would end up being one that made a materially narrower scope of stuff qualify as fair use and thus non-infringing. Fuzzy rules are perhaps sometimes the worst legal regime possible except for the practically available alternatives.

My response:

Quite aside from which is the right legal rule, I also think that there’s a positive incentive effect to publicizing cases like this in which estates of notable persons either appear in a light of being unreasonably prickly themselves, or heedlessly sell rights to those who squeeze them with little regard for what the notable person stood for in life. The better known these cases are, the more likely it is that notable persons and their near families will think through how they might want to plan their bequests so that their estates will rest in the hands of those willing to cooperate with scholars, encourage derivative works, etc. King himself of course was cut down too young for us to expect this, but most major figures who leave a cultural legacy have more chance to plan, or their widows/widowers do.

Jim Hood, a go-to guy for Hollywood?

Who’d have guessed that movie studios would entrust populist Mississippi Attorney General and longtime Overlawyered favorite Jim Hood with a key role in pushing their rights as copyright owners against online services and search engines? Not I [Eli Lehrer, Weekly Standard] More from Mike Masnick at TechDirt: “it appears the MPAA and the major Hollywood studios directly funded various state Attorneys General in their efforts to attack and shame Google.” Related: The Verge.

Sequel: Google goes to court to block a sweeping subpoena from Hood [ArsTechnica, HuffPost (Hood: “salacious Hollywood tale”)] “One of Hood’s letters critical of Google, published earlier this week by The New York Times, was ‘largely written by lawyers for the movie industry,’ the company points out.” More: Hood vs. Google, from our archives.

Intellectual property roundup

  • Supreme Court suggests sanctions against patent practitioner over eccentric if not incomprehensible certiorari petition [Will Baude]
  • Some copyright and patent owners pursue market-based self-help remedies against infringement [Glenn Lammi/WLF, more]
  • DC Comics sues Spain’s Valencia soccer team because its bat logo is too similar to that of Batman [Yahoo]
  • Federal judge dings California lawyer $87K, finding suit against online news aggregator to be baseless [ABA Journal]
  • “Evidence from opera on the efficacy of copyright” [Michela Giorcelli/Petra Moser, SSRN via Tyler Cowen]
  • Go ask Alice: patent litigation takes a hit after SCOTUS ruling [Legal Ethics Forum, Alex Tabarrok]
  • Adam Carolla managed to crowdfund defense against patent plaintiff, usual cautions against trying this at home [Above the Law]

Intellectual property roundup

  • “Our mangled patent system,” Cato podcast [with Eli Dourado of the Mercatus Center] Critique of federal circuit [Dourado at Cato Unbound]
  • Since SCOTUS’s June decision in Alice v. CLS Bank, many courts have struck down software patents as too-abstract [Timothy Lee, Vox]
  • Iqbal-Twombly principles as remedy for patent trollery? [Daniel Fisher]
  • ISP resists mass copyright enforcement enterprise’s demand for customer list [DSL Reports]
  • Win for Personal Audio in E.D. Tex.: “Jury finds CBS infringes podcasting patent, awards $1.3 million” [ArsTechnica]
  • “Premier League Uses Copyright To Pull Down YouTube Video Of Professor Advocating For Stronger Copyright For Premier League” [Mike Masnick, Techdirt]
  • A new leaf? “Silicon Valley’s Most Hated Patent Troll Stops Suing and Starts Making” [Business Week]

Silencing oldies radio?

Under a potentially far-reaching ruling by a federal judge interpreting California state law, satellite and streaming music services like SiriusXM and Pandora — and maybe bars and restaurants too — could be liable for vast sums for having broadcast pre-1972 recordings without obtaining “public performance” permission under California state law. [Hollywood Reporter’s THR Esq; plus a very informative take from Jesse Walker]

Ecuador’s copyright enforcers

“If you say anything remotely critical about the Ecuadorian government, you may face a copyright takedown,” wrote Maira Sutton at EFF in May. A Spanish firm that represents the government of Ecuador, Ares Rights, has sent out many such takedown demands, related to media accounts of surveillance, corruption, and the country’s Lago Agrio legal dispute with Chevron. More recently, following growing scrutiny of its own activities, Ares Rights has aimed takedown demands citing supposed copyright infringement against its own critics, including Adam Steinbaugh. Details: Mike Masnick, TechDirt; Ken at Popehat. It has also represented the government of Argentina.