Tag: useful articles

Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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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.

Patterns and copyright protections

In the United States, patterns are generally not eligible for copyright protection as copyright does not apply to methods or “procedures for doing, making, or building things.” Additionally, an item created from a pattern also lacks copyright protection if it is considered to be a functional object. Under the Useful Article doctrine in US copyright law, if an object has a practical or useful function, copyright protection applies only to the original, creative elements “that can be identified separately from the utilitarian aspects of an object”, but does not extend to the underlying design of the functional object.

photo of vintage sewing pattern

Photo: Butterick Dress 5579 Instr (c) Allison Marchant, CC BY-NC-SA 2.0
Here, while the drawing of the dress may be considered a creative expression of the author and therefore eligible for copyright protection, the pattern instructions and any dress made from the pattern would not be protected by copyright.

In the absence of copyright protection for functional objects, a user of a pattern may be able to use whatever she makes from that pattern for any purpose, including selling the items. However, accompanying materials included with the pattern, such as images, may be eligible for copyright protection (see image above). The United States Copyright Office provides the example that while a drawing or photo of a dress may be copyrighted, that does not give the artist the exclusive right to make a dress of that particular design.

Despite this legal landscape, copyright notices and terms of use such as the following are still commonly found on patterns:

“Copyright 2014. All Rights Reserved. Pattern is for personal, non-commercial use only. Selling items made from this pattern is prohibited.”

What does this mean for designers and those wanting to use the pattern? Are the copyright notices and accompanying terms of use legally binding? Some designers believe that the notice they put onto their patterns provides them with legal protection, but because copyright law does not protect the pattern itself, are the terms of use stipulating personal, non-commercial use legally enforceable?

When it comes to what can be done with the final product made from a pattern, there is a conflict between the desires of those who want to use the pattern and those who designed the pattern. With no relevant case law available as a guide, there really are no definitive answers. Despite the lack of legal precedent, those wanting to use patterns and the items made from those patterns should be aware of how they can legally make use of these materials. In the same vein, designers should understand to what extent and how they can protect their work.

The view commonly held by designers is relatively simple: follow the restrictions set in the pattern’s disclaimer. For example, if a knitting pattern you downloaded was accompanied by a disclaimer that read “personal, non-commercial use only” you could make as many items as you wanted using that pattern, but you could not sell any of them because that would constitute a non-personal, commercial use. However, when designers place notices on their patterns, they may be exaggerating copyright protections and licenses. But it is important to remember that even if copyright protection is not available, a user may be agreeing to a license that restricts the way he may use the pattern when he consents to the terms and conditions set by the designer.

Pattern users should be aware of what they are agreeing to when purchasing or downloading a pattern. By clicking a box that reads, “I agree to the terms & conditions”, a user may be entering into a legally binding agreement that can restrict what she may do with the pattern. Under US law, terms that parties consent to in a contract can trump copyright law, leaving designers with possible legal recourse for misuse of a pattern.

Seeking clear legislative guidance and wanting protection for their work, the fashion industry lobbied Congress to create legislation that would protect unique designs. First introduced in 2007, the Innovate Design Protection and Piracy Prohibition Act (IDPPPA) sought to protect designs for a period of three years if registered with the US Copyright Office within three months of being made available to the public. While similar legislation to limit design piracy has been enacted in Europe, India and Japan, legislative progress of the IDPPPA has stalled as of 2014, and patterns are still generally not copyrightable in the United States.

Unless and until moves are made in Congress, answers about copyright protection and designs still lie in a gray area. Whether you are a designer or a user of patterns, it is important to remain informed about your legal rights and understand the possible ramifications that can come along with something as simple as a pattern.

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Morgan Cheek is a legal intern at the OSU Libraries’ Copyright Resources Center and is currently a student at The Ohio State University Moritz College of Law