Tag: free speech

Copyright Roundup, Part I

The past few months have seen a number of interesting trials and developments in copyright law. We are providing a two-part Copyright Roundup to summarize those cases you may have missed and to let you know why they are important. In part I, we discuss embarrassing photos, cheerleading uniforms, and monkey selfies.

Blogger’s use of “aesthetically displeasing” photograph of Miami Heat investor still a fair use.

We first covered the facts in the Katz v. Chevaldina case in our blog post, “Copyright as an Instrument for Censorship?”, noting that Mr. Katz had filed an appeal of the district court’s finding that defendant Irina Chevaldina was entitled to summary judgement based on a fair use defense. On September 17, 2015, the 11th Circuit released their opinion, affirming the lower court’s decision. Analyzing the purpose and character of use, the court found every use of the Mr. Katz photo to be primarily educational, rather than commercial (educating others about the nefariousness of Mr. Katz) and use of the photo to be transformative (Chevaldina used the photo to ridicule and satirize Mr. Katz’s character). When considering the nature of the copyrighted work, the court found the previously published photo to be primarily a factual work (the photo was a candid shot and the court found no evidence to establish that the photographer attempted to “convey ideas, emotions, or influence Katz’s expression or pose”.[1] Finally, the use of the photo would not materially impair Katz’s incentive to publish the work—because Katz obtained ownership to prevent publication, there was no market for the original work.

Why does it matter? Katz’s conduct in initiating this lawsuit raised some big questions about the role of copyright law in censoring speech. In this case, Katz’s attempt to use copyright law as a shield against unwanted criticism ended up helping to strengthen Chevaldina’s fair use defense. The court’s central question under the fourth fair use factor was whether Chevaldina’s use of the photo would cause substantial economic harm that would impair Katz’s incentive to publish the photo. By obtaining the copyright in the photo and initiating a lawsuit to prevent publication of the photo, however, Katz demonstrated his desire to stop any use of and access to the photograph. The court held that Chevaldina’s use of the photo did not impair Katz’s incentive to publish the photo because Katz had no incentive to publish the photo and the likelihood of Katz changing his mind was “incredibly remote.”

The court also had an interesting analysis of the factual nature of the photograph. For a thoughtful discussion of this point, read Kevin Smith’s post, “Photography, Fair Use and Free Speech.”

Copyright protection for cheerleading uniforms: Varsity Brands v. Star Athletica

Varsity Spirit Corporation and Varsity Spirit Fashions and Supplies, Inc. (Varsity) designs and manufactures cheerleading apparel and accessories, having received copyright registrations for many of their design sketches. These designs included different combinations and arrangements of stripes, zigzags, chevron, and color blocks. The question on appeal was whether these elements were needed to make a cheerleading uniform or whether the design elements could exist separately from the uniform.

On August 19, 2015, the Sixth Circuit reversed the district court’s decision that Varsity’s designs were not physically or conceptually separable from the utilitarian function of the cheerleading uniform, holding that the graphic designs on Varsity’s cheerleading uniforms were separate and therefore copyrightable. The Court distinguished Varsity’s design from dress designs, which typically do not receive copyright protection.

Why does it matter? U.S. copyright does not protect useful articles. Useful articles are articles that have a utilitarian function beyond portraying the appearance of the article or conveying information. To the extent that a work includes a useful function, copyright will only protect those original elements of the work that can be independently separated from the useful function of the work.

Prior to this case, the Sixth Circuit (binding authority for Ohio’s federal district courts) had not adopted an approach for determining separability. After reviewing the approaches taken by other circuits, the Sixth Circuit decided to adopt a hybrid approach to determine if a particular design is a copyrightable pictorial, graphic, or sculptural work. To make this determination, the following questions must be asked:

  1. Is the design a pictorial, graphic, or sculptural work?
  2. If yes, is it a design of a useful article?
  3. If the design is of a useful article, what are the utilitarian aspects of the useful article?
  4. Can the viewer of the design identify pictorial, graphic, or sculptural features separately from the utilitarian aspects of the useful article?
  5. Finally, can the pictorial, graphic, or sculptural features of the design of the useful article exist independently of the utilitarian aspects of the useful article?

In answering these questions, the court identified a utilitarian function of a cheerleading uniform to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”[2] The court found that the top and skirt of the uniform could still be identified as a cheerleading uniform even without stripes, chevrons, color blocks, or zigzags. Finally, the interchangeability of the designs indicates the graphic features can exist separately and independently from the utilitarian features of the uniform.

Can a monkey own a copyright?

The “Monkey Selfie” case has taken an additional twist with a new lawsuit brought on behalf of Naruto, the crested macaque. The monkey selfie case began in 2011 when photographer David Slater took a trip to Indonesia and left his camera unattended. A monkey (Naruto) used the camera to take a number of photos of himself grinning into the camera. One self-portrait was reproduced in publications around the world, eventually being added to Wikimedia Commons under the presumption that the work was in the public domain.[3] This prompted Mr. Slater to issue several DMCA takedown notices.

In 2014, Mr. Slater published a book containing copies of the Monkey Selfies, continuing to assert himself as copyright owner of the photographs. Later that year, the Copyright Office revised the Compendium of U.S. Copyright Office Practices, to clarify that the U.S. Copyright Office would not register works produced by animals, including, for example, “a photograph taken by a monkey.”[4]

On September 21, 2015, PETA filed a copyright lawsuit on behalf of Naruto against Mr. Slater, alleging that Mr. Slater falsely claimed to be the author of the photographs and made unauthorized copies of the works for commercial purposes. The lawsuit seeks an order to permit PETA to administer and protect Naruto’s rights in the photographs, declaring Naruto the author and copyright owner of the works.

Why does it matter? U.S. copyright law does not specify human authorship, though the U.S. Copyright Office has provided guidance on the issue through the Compendium of U.S. Copyright Office Practices. This case raises a number of interesting questions around how we define, or should define, “author.” If non-human authors are recognized as eligible copyright owners, should lines be drawn? Should the law, for example, provide exclusive rights to machines? And if the author can’t communicate their preferences, should we allow someone to speak on their behalf?

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We will continue our Copyright Roundup in part two, where we will look at some important fair use developments in the Google Books lawsuit and Stephanie Lenz’s “dancing baby” case against Universal Music and answer the question, “is Happy Birthday to You finally in the public domain?”

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237 (6th Cir. 2015).

[3] Wikimedia Commons refused to remove the photograph on the basis that Mr. Slater was not the author of the work. Without a human author, Wikimedia Commons argued, the work may not be protected by copyright.

[4] U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices (3d ed. 2014) § 313.2.

Copyright in Campaigns

Election Day may still be over a year away but the 2016 Presidential campaign is already underway. As a battleground state, Ohio will experience a lot of political activity over the next 14 months.  Among the anticipated barrage of political ads, full calendar of rallies, and around-the-clock media coverage of campaign activity, we will see our friend: copyright. Copyright protects a wide variety of works—speeches, websites, marketing materials, etc.—so long as the work is original and fixed in a tangible format. This blog will highlight some of the many areas you will see copyright pop up during the campaign season.

Political Speeches:

Original political speeches written by candidates (or speechwriters) receive copyright protection, meaning the author of the speech may exercise control over the reproduction, adaptation, distribution, and performance or display of the speech. Two categories of works are not covered by copyright, however: works that fail to meet the fixation requirement and works created by federal employees within the scope of their employment. This means that speeches made at town hall meetings or political rallies may not be protected by copyright, unless those speeches were recorded or transcribed. It also means that works created by incumbent presidents or U.S. Senators or Representatives, if made within the scope of their employment, lack copyright protection and are free to use. For example, a speech made and recorded by Bernie Sanders within his role as Senator or a report written by Hillary Clinton as U.S. Secretary of State may be used without permission. A work created by a non-federal employee (e.g., Martin Luther King Jr.’s famous “I Had a Dream” speech), however, may still be protected by copyright.

When speeches are televised, the broadcasting entity televising the speech (e.g., CBS, Fox News, C-SPAN, or CNN) may hold a separate copyright in the broadcast recording. This is true even if the speech itself is made by a federal employee within the scope of their employment or is otherwise in the public domain.

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Copyright as an Instrument for Censorship?

Copyright protects the intellectual property of creators—more specifically it protects original works of authorship that are fixed in a tangible medium of expression. Copyright owners have a bundle of exclusive rights in their protected works and they may exercise these rights to control who and under what conditions their work may be used or reused. In copyright law, the rights of copyright owners have often intersected with the rights of others regarding copyright as well as other legally protected rights, including trademark, right of publicity, and right of privacy. Recently, some issues have arisen over the intersection of copyright enforcement and censorship, in which subjects and/or rights holders of publicly available copyrighted works have sought to remove access to the works.

These issues have become seemingly more common with the emergence of the takedown procedure set forth in the Digital Millennium Copyright Act (DMCA). The DMCA provides a takedown process that allows rights holders to request the removal of their copyrighted materials that have been uploaded by users and hosted by online service providers such as YouTube, WordPress, or Tumblr. In the past month alone, Google has received DMCA takedown notices from 5,596 copyright owners requesting the removal of 39,829,891 URLS.[1]

The DMCA takedown process makes removal of copyrighted material expeditious, and in many cases automatic (e.g., YouTube’s Content ID system), but when does the removal of infringing content align with the purpose of copyright law to “promote the Progress of Science and useful Arts,”[2] and when does it cross the line into the realm of censorship?[3] Here are some recent examples to consider:

  1. “Ugly” photograph. In Katz v. Chevaldina,[4] a photograph was taken of businessman Raanan Katz, in which Mr. Katz can be seen with his tongue sticking out of his mouth. The photograph was described as “ugly” and “candid and embarrassing” by Mr. Katz. The photo was first published in an Israeli newspaper accompanying a favorable article discussing Mr. Katz’s potential ownership interest in an Israeli basketball team, before being republished several times by Irina Chevaldina on her blogs. The republished photos were sometimes accompanied by critical remarks or included in mocking cartoons. Following a request from Mr. Katz, the Israeli photographer who took the photo assigned his copyright to Mr. Katz free of any charge (Mr. Katz testified he had obtained the assignment “[b]ecause I wanted to stop this atrocity”). Following the assignment, Mr. Katz asked Ms. Chevaldina to remove the photos from her blogs. When Ms. Chevaldina refused, Mr. Katz filed a suit for copyright infringement. On balance, the district court found Ms. Chevaldina’s use of the photo to constitute a fair use, protecting her from liability. An appeal has been made to the Eleventh Circuit.
  1. Propaganda film. In 2011, Cindy Lee Garcia agreed to perform a minor role for Desert Warrior, an action thriller set in Arabia. Without her knowledge or consent, Ms. Garcia’s performance was then used in the creation of Innocence of Muslims, an anti-Islam propaganda video. Following the upload of the video to YouTube, Ms. Garcia received death threats for her involvement in the film. Ms. Garcia filed numerous DMCA takedown notices with Google, all of which were resisted, before seeking legal action to remove the video based on the claim that the posting of the video infringed her copyright in her individual performance. In May 2015, the Ninth Circuit affirmed an earlier decision by the district court and held that Ms. Garcia lacked a copyright interest in her 5-second performance, stating that “a weak copyright claim cannot justify censorship in the guise of authorship.”[5]
  1. “Unauthorized” blog post. In 2013, student journalist Oliver Hotham reached out to Straight Pride UK, asking if he could send some questions for more information on the organization. The questions and corresponding answers were posted to Mr. Hotham’s WordPress blog and included comments from Nick Steiner, Straight Pride UK’s press officer, urging individuals to come out as straight and speaking of the need to raise awareness of heterosexuality and traditional lifestyles and relationships. On the same day the post was made, Mr. Hotham received a DMCA takedown notice. Mr. Hotham refused to remove the material from his blog and filed a counter-claim. Following legal action, Automattic, the company responsible for operating WordPress.com, was granted a motion for default judgement on their claim against Mr. Steiner for misrepresentation in filing a DMCA notice (17 USC 512(f)). [6] Automattic was awarded $25,084 in damages.
  1. Revenge porn. The emergence of revenge porn has also raised some questions around the role of copyright in removing online content. Typical revenge porn cases involve the nonconsensual public distribution of sexually explicit photos or videos, often released by a victim’s ex-partner. A majority of these videos and images are taken by the victims themselves.[7] While some states have passed revenge law legislation or currently have laws in place broad enough to encompass revenge porn, many states leave victims with fewer legal options. Victims of revenge porn have pursued tort claims, including harassment, stalking, and invasion of privacy, but because most uploaded photos are taken by the victim themselves, a claim of copyright infringement has been suggested as an attractive option to facilitate the takedown of the material.

In situations where copyright is asserted to censor in order to achieve a positive societal result, is it enough that the ends justify the means? Or should these issues be viewed solely through the lens of the purpose of copyright law; to promote the progress of science and the useful arts? These types of issues will continue to arise as courts are asked to define the line between allowing copyright owners to exercise their legal rights and allowing copyright owners to use their legal interests to censor otherwise lawful conduct.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Google Transparency Report. Requests to remove content: Due to copyright. Available at: https://www.google.com/transparencyreport/removals/copyright/ (last updated July 8, 2015).

[2] U.S. Constitution, Art. 1, Sec. 8, cl. 8.

[3] Compare the emphasis the European Union places on privacy versus the United States’ emphasis on the public’s right to know. In 2014, the Court of Justice for the European Union ruled that under the 1995 Data Protection Directive, individuals have a right to be forgotten under certain circumstances. Individuals may exercise this right by asking search engines (including U.S. search engines with a branch or subsidiary in an EU Member State) to remove inaccurate, inadequate, irrelevant, or excessive personal information. The court ruled, however, that the right to be forgotten would be balanced against the freedom of the media and the freedom of expression. Individuals have since exercised this right to be forgotten, requesting Google to remove links to revenge porn. See The Economist (Oct. 4, 2014). The right to be forgotten: Drawing the line. Retrieved from http://www.economist.com/news/international/21621804-google-grapples-consequences-controversial-ruling-boundary-between.

[4] Katz v. Chevaldina, 12-22211-CIV-KING/MCALILEY, 2014 U.S. Dist. LEXIS 88085 (S.D. Fla. 2014).

[5] Cindy Lee Garcia v. Google, Inc., D.C. No. 2:12-cv-08315-MWF-VBK (9th Cir. 2015) (en banc).

[6] Automattic, Inc., et. Al., v. Nick Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal., Oct. 6, 2014).

[7] Cyber Civil Rights Initiative (Sept. 10, 2013). Proposed CA Bill Would Fail to Protect up to 80% of Revenge Porn Victims [Press release]. Retrieved from http://www.cybercivilrights.org/press_releases.

 

Fair Use 101: Why do we need fair use?

Scale balancing copyright symbol and mortarboard hat,

© 2008 Michael Brewer & ALA Office of Information Technology Policy, CC BY-NC-SA 3.0

The ultimate purpose of copyright is not solely to protect creators’ rights. That may sound like a radical statement, but protecting individuals’ rights is merely the means to an end. Copyright is actually intended to promote progress, creativity, and innovation for the benefit of society as a whole.

Ideally, everyone prospers from new works which generate culture, provoke discourse, commentary, or criticism, and inspire other creators to produce something new in turn. Copyright encourages individuals and businesses to create art, literature, music and other original expressions by granting authors the exclusive rights to their work so that they may have an opportunity to profit from their endeavors. Once creators have had a chance to benefit from their work, copyright expires and others may use an author’s work without restriction, but this doesn’t happen for a long time—70 years after the death of the author!

Particularly given the lengthy duration of copyright protection, fair use provides an important exception to copyright that helps to balance the interests of creators and the public good. Without fair use and other copyright exceptions, it would become prohibitively time consuming and expensive to conduct everyday activities like reporting the news or teaching a class because journalists, teachers, and others would need to seek permission every time they wanted to use copyrighted materials. Additionally, rightsholders can (and do!) refuse to grant permission for uses they see as undesirable or damaging, such as critical reviews. Fair use provides an important safeguard against censorship via copyright.

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Private Negotiations Could Affect Public Internet Use

The Trans-Pacific Partnership (TPP) is a free trade agreement that is currently being negotiated on behalf of United States citizens by Assistant U.S. Trade Representative Barbara Weisel. There are currently nine countries involved in the negotiations; an invitation was extended to Mexico and Canada in summer 2012. The TPP includes a section on intellectual property (IP) law and enforcement that could affect privacy, free speech and even the application of fair use online. It is being negotiated entirely in secret and could affect copyright law in all eleven participating countries should they ratify this agreement.

Concerns over the process, as well as the potential outcome, of this trade agreement have been expressed at Electronic Frontier Foundation (EFF), Ars Technica, and Techdirt.  Many concerns about the TPP have to do with the perception that this is yet another attempt to create wide-reaching policies in order to protect the intellectual property of private companies (one of the major issues with the failed SOPA and PIPA proposed bills in Congress).

Another common complaint is about the high level of secrecy under which the negotiations are being held. So far there has been no official release of any text of the TPP draft agreement, although a copy of the U.S. proposed IP chapter was leaked in February 2011. On August 3, 2012, the proposed text of the Exceptions and Limitations section of the IP chapter of TPP was leaked, as well.

Members of Congress, who have jurisdiction over all international trade agreements, have repeatedly requested access to the text of the TPP . So far they have been continuously denied. U.S. House Representative Darrell Issa (R-CA), whose constituency includes San Diego, requested permission to sit in on the round of negotiations that was held there in July 2012, but he was also denied.

Although Mexico and Canada were both invited to join the TPP agreement, they were required to sign on without seeing the agreement first and without having the option to negotiate any already agreed upon portions. Additionally, a 90 day probationary period kept both countries from participating in the last two rounds of negotiations which were held in June and September 2012. Michael Geist, a law professor at the University of Ottawa and expert on Canadian copyright law, has expressed concern that if Canada signs on to the TPP, the newly updated Canadian copyright law would have to be drastically rewritten.

The public is also being locked out of the TPP negotiation process. On September 9, 2012, at the most recent round of negotiations held in Leesburg, Virginia, the public was invited to speak with negotiators and ask questions. Unfortunately, the public groups were not given access to the text on which they were supposed to provide feedback. According to EFF and Techdirt, the negotiators also refused to respond to questions based upon the leaked texts, which are the only versions available to the public.

If ratified, the terms of the TPP could require Congress to change U.S. law, including copyright law. The American public should have the opportunity to give input on any changes to U.S. law. These secret negotiations continue to block public discourse and may cause irreparable harm to the individual use of the Internet.

For a more complete look at the TPP itself, take a look at Public Knowledge’s TPP Info page and EFF’s TPP page. If you would like to express concern about the lack of transparency involved in the TPP negotiations, you can go to the EFF’s Take Action page, or you can sign the petition at Stop the Trap.