If you pay an athlete or other celebrity for the right to depict them in a poster or videogame, do you have a right to show an accurate rendering of their tattoo without further seeking permission from the original tattoo artist? It’s widely agreed that tattoos enjoy some degree of copyright protection, most obviously so in the case where an infringer has swiped an original design for purposes of tattooing someone else. Damages, at least, would be available in such a case, though it might prove hard to persuade courts to exercise the power accorded them by 17 U.S.C. § 503 to order the “impounding and disposition of infringing articles.” [Ira Boudway, Bloomberg BusinessWeek]
Users have been known to complain that Tumblr, the immensely popular microblogging site, is not always as communicative as it might be about the periodic outages it has suffered. Zach Inglis put up a site called IsTumblrDown.com which gave users a clue whether an inability to connect was just them, or the whole system being down. There was little likelihood that it would be confused with an official site, especially since it took a bit of a mocking tone toward the platform giant (and had no revenue). Lawyers representing Tumblr nonetheless fired off a nastygram demanding the site’s removal.
The story has a rare happy ending, though. Tumblr sent a second letter saying that the cease and desist letter had been sent by mistake [Daily Dot]:
We deeply apologize for our mistake. Our legal department very recently started using a third party vendor to assist us in pursuing trademark infringers and, due to an error in our new process, your domain was mistakenly caught in the cross-fire.
To paraphrase Eric Turkewitz, when you outsource your trademark enforcement, you might just find yourself outsourcing a chunk of your customer goodwill at the same time.
“The speech, which won’t be in the public domain until 2038, can only be used if a commercial entity pays the King estate a hefty fee,” writes Mark Leiser at The Drum. Nick Gillespie at Reason: “[Martin Luther] King had not copyrighted the text before delivering several versions of it or before his assassination; his family secured the copyright after his death.”
Should private standards organizations be entitled to retain copyright over building and fire codes when those codes have been adopted into public law? “On August 3, the National Fire Protection Association, ASTM International and the American Society of Heating, Refrigerating and Air Conditioning Engineers filed a lawsuit with a federal court in Washington, D.C., alleging ‘massive copyright infringement’ by Public.Resource.Org for publishing codes and standards that have been incorporated into law.” [EFF]
…many of them too readily employ DMCA takedown requests to keep the public from perusing the offending clips. [Kristin Bergman, Digital Media Law Project]
Yes, “copyright infringement”:
Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency's] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.
Warner/Chappell Music continues to demand and collect royalties for public performance of the ditty, although its melody was first published more than 120 years ago and the familiar celebratory words have been sung to it for more than a century. A new lawsuit seeks a judicial ruling that the song is in the public domain and asks a return of wrongfully collected royalties. [The Hollywood Reporter via Mike Masnick, TechDirt]
You’d think if anyone owned the phrase, it would be Her Majesty’s Government or, failing that, the bookselling couple in the North of England who brought the W.W. II-vintage poster back from obscurity. But one former TV producer has different ideas, and would like to own the rights. [CBS News (autoplays; I've removed the previously embedded video because I couldn't disable autoplay); earlier]
Judge Clifton of the Ninth Circuit (via ArsTechnica):
Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so,” the opinion begins.
Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.
“Canada Post — a failing, state-owned Crown Corporation — not only claims a copyright on the database of postal codes (a collection of facts, and not the sort of thing that usually attracts copyright). They also claim a trademark on the words ‘postal code,’ and have sent legal threats to websites that use the words factually, to describe actual postal codes.” (U.S. = zipcodes) [Cory Doctorow, BoingBoing; Eruci]
Cathy Gellis, guesting at Popehat, has a long post on the latest in the Prenda Law saga. A relevant paragraph:
The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides’ lawyers. … But just because a judge may grant an award of attorney fees doesn’t mean the money will ever be recovered; enforcing a judgment often presents its own expensive challenges, meaning a wronged defendant can still be saddled with the costs of his own defense. However the California Code of Civil Procedure has a provision, § 1030, to help mitigate that financial risk by allowing defendants in similar positions as Mr. Navasca [a man seeking fee recovery from Prenda Law over a questionable copyright action] to require plaintiffs to make an “undertaking;” that is, to post a bond that would guarantee, when the defendant inevitably wins his fees, that he would actually get the money.
Both provisions could prove important in bringing the rogue legal enterprise to heel. If only other areas of law besides copyright had loser-pays, and other states besides California emulated the “undertaking” idea. Earlier on Prenda Law here and here.
While I often part company from the views of L.A. Times columnist Michael Hiltzik, in this case he shines helpful light on the doings of now-infamous copyright mill Prenda Law (earlier), much discussed by Ken at Popehat in recent weeks.
The Supreme Court ruled that the first-sale doctrine of copyright law protects the rights of someone who buys books abroad for resale here, whether or not the publisher approves. [Kirtsaeng v. John Wiley & Sons: Joe Mullin/Ars Technica, SCOTUSBlog, Margot Kaminski/Concur Op ("this is all statutory interpretation" and subject to change by Congress; conflict with existing international trade agreements), earlier here and here] More: Chris Newman.
Terry Teachout, WSJ (via About Last Night):
…In Europe, sound recordings enter the public domain 50 years after their initial release. Once that happens, anyone can reissue them, which makes it easy for Europeans to purchase classic records of the past. In America, by contrast, sound recordings are “protected” by a prohibitive snarl of federal and state legislation whose effect was summed up in a report issued in 2010 by the National Recording Preservation Board of the Library of Congress: “The effective term of copyright protection for even the oldest U.S. recordings, dating from the late 19th century, will not end until the year 2067 at the earliest.… Thus, a published U.S. sound recording created in 1890 will not enter the public domain until 177 years after its creation, constituting a term of rights protection 82 years longer than that of all other forms of audio visual works made for hire.”
Among countless other undesirable things, this means that American record companies that aren’t interested in reissuing old records can stop anyone else from doing so, and can also stop libraries from making those same records readily accessible to scholars who want to use them for noncommercial purposes. Even worse, it means that American libraries cannot legally copy records made before 1972 to digital formats for the purpose of preservation—not unless those records have already deteriorated to the point where they may soon become unplayable.
Ken at Popehat and Mike Masnick at TechDirt are on the case of Prenda Law, which is in the business of monetizing low-value copyrights to adult entertainment properties. The story, which recently resulted in the filing of defamation suits against Prenda critics, is highly convoluted, so I recommend scrolling down to earlier posts in the series (such as this one by Ken).