Category: Entertainment & Arts

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A Modern Melody for the Music Industry: The Music Modernization Act is Now the Law of the Land
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A Modern Melody for the Music Industry: The Music Modernization Act Just Passed Congress and Awaits Presidential Approval
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Worth the fight: IP dispute resolution that won’t break the bank
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U.S. Federal Court rules embedding a Tweet could be copyright infringement
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When recording also means communication to the public – interaction between copyright and cloud-based video recording services
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If and how to restrict the distribution of bot-programs for online-games – The “World of Warcraft II” Decision, Germany
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The Charging Bull and the Fearless Girl: Moral Rights Protections in Australia and the U.S.
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Kardashian #copyright saga
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Netflix and Italian SIAE Reach Agreement for Protection of Music Catalogue on Online Platform
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To Perform a Technical Function or Not: This is Rubik’s Question.

A Modern Melody for the Music Industry: The Music Modernization Act is Now the Law of the Land

On October 11, 2018, President Trump signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA) into law. The MMA is intended to “modernize copyright law” as applied to songwriters, music publishers, digital music providers, record labels, and others involved in the creation and distribution of music.

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A Modern Melody for the Music Industry: The Music Modernization Act Just Passed Congress and Awaits Presidential Approval

By Mark Wittow, Katie Staba and Trevor M. Gates

On September 25, 2018, the House concurred in Senate amendments to the newly-named Orrin G. Hatch-Bob Goodlatte Music Modernization Act (the “MMA”), sending that act to the president for signature.[1] The MMA is intended to “modernize copyright law” as applied to songwriters, publishers, digital music providers, record labels, and others involved in the creation and distribution of music. The MMA consists of three parts:

  • Title I establishes a licensing collective for digital music service providers to grant blanket mechanical licenses to such providers and collect and distribute royalties to rights owners;
  • Title II creates a royalty structure to compensate owners of pre-1972 sound recordings; and
  • Title III provides a statutory right for producers, mixers, and sound engineers to collect royalties for digital transmissions of sound recordings.

The MMA is the result of unprecedented alignment among Republicans and Democrats, the U.S. House and Senate, and music industry stakeholders.[2] Nonetheless, this major update to copyright licensing law in the music industry may cause upheaval within the complex music marketplace structure, which encompasses songwriters, studio professionals, artists, record labels, and digital streaming services.[3]

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Worth the fight: IP dispute resolution that won’t break the bank

Small businesses and individual rights holders are set to benefit from the Intellectual Property National Pilot Scheme in the Federal Circuit Court

A specialist IP list in the Federal Circuit Court of Australia (FCC) is open for business, with the goal of achieving quick, cheap and effective dispute resolution of intellectual property matters.

The Intellectual Property National Pilot Scheme commenced on 1 July 2018 and appeals to small and medium-sized enterprises, individual rights holders and young innovators who may have previously avoided the court system even though they had a legitimate right or a good defence, but found that it simply wasn’t worth the fight.

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U.S. Federal Court rules embedding a Tweet could be copyright infringement

A federal district court in New York recently held that embedded tweets could violate the exclusive right to display a copyrighted image. In 2016, Plaintiff Justin Goldman snapped a photo of New England Patriots quarterback, Tom Brady, with Boston Celtics General Manager, Danny Ainge. Goldman then uploaded the photo to his Snapchat Story. The image went viral, making its way onto Twitter, where it was uploaded and re-tweeted by several users. From there, media outlets and blogs published articles which featured the photo by embedding the tweets on their webpages. Goldman sued the media outlets for copyright infringement.

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When recording also means communication to the public – interaction between copyright and cloud-based video recording services

On 29 November 2017, the Court of Justice of the EU (CJEU) released its judgment in response to a reference from an Italian court relating to cloud recording and computing services provided by VCAST Limited (VCAST). The services enabled VCAST’s customers to select live broadcasts of television programmes that VCAST then remotely, through its own systems, recorded and made available in a cloud data storage space. The Italian court asked whether VCAST could provide this service without the permission from the owner of the copyright over the programme, with a specific query as to the application of the private copying exception provided in Article 5(2)(b) of the Information Society Directive (2001/29/EC) (InfoSoc Directive).

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If and how to restrict the distribution of bot-programs for online-games – The “World of Warcraft II” Decision, Germany

Early in 2017, the German Federal Court of Justice (FCJ) rendered a judgment in relation to the distribution of automation software (“bot-programs”) for the computer game “World of Warcraft”. The claimant developed and owns all rights to the popular online computer game “World of Warcraft”, which it distributes on the Internet. Furthermore, he is the owner of the trademarks “WORLD OF WARCRAFT” and “WOW”. To play the game, users have to acquire client software and register on a server. In the course of registration, the user has to accept the general license terms as well as terms of use of the claimant. The terms of use of the claimant prohibit the use of bot-programs by the user.

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The Charging Bull and the Fearless Girl: Moral Rights Protections in Australia and the U.S.

The Charging Bull has been an iconic New York City landmark since it was placed outside the New York Stock Exchange in December 1989 in an act of guerrilla art.  Despite initially being removed, the statue’s popularity caused it to be relocated to Bowling Green days later, where it has since remained, on loan to the New York City Council.  Earlier this year, on the eve of International Women’s Day, Charging Bull was joined at Bowling Green by a second guerrilla-art installation, sculptor Kristen Visbal’s four foot statue titled Fearless Girl, who stares defiantly at the Charging Bull.

The artist behind the Charging Bull, Artutro Di Modica, claims that the placement of Fearless Girl is an insult to the Charging Bull and that her placement is ‘attacking the bull’.  The competing interests of the artists raise interesting questions in intellectual property law, specifically regarding Di Modica’s ‘moral rights’.  Does the Fearless Girl have reason to fear impending intellectual property litigation? Or will the Charging Bull have to accept the new kid on the block?

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By: Sophie Taylor

Kardashian #copyright saga

Is this the right angle?
Is this the best filter?
Do I have the legal right to post this content?

While the first two questions may be at the forefront of the mind of social media users, the third is arguably as important as the pressure to push content to followers mounts in a saturated market. It is all too easy to download, screen-shot or take a photo of an image and share it across many platforms, however, taking a laissez-faire attitude to copyright ownership can land social media users in hot water.

Not only is uploading and sharing content protected by copyright a breach of the terms of use of most social media platforms (and could lead to a  user’s accounts being suspended or terminated in some cases) but it may also lead to copyright litigation, as Khloe Kardashian recently discovered.

Last week, Xposure Photos UK LTD, an “international celebrity photo agency”, filed proceedings against Ms Kardashian in the Central District Court of California alleging that she had infringed its copyright in an image that was posted to her Instagram® account.[1]  The image in question had originally been licensed to The Daily Mail and contained a copyright notice “© XPOSUREPHOTOS.COM”. The version of the image that appeared on Ms Kardashian’s account did not contain this notice nor any acknowledgement of Xposure Photos. The unauthorised removal of the copyright notice attracts 17 US Code § 1202 -1203 which provide the basis for a civil action for such conduct. In addition to seeking an injunction to prevent Ms Kardashian from using the image, Xposure Photos is also seeking US$25,000 in statutory damages as well as any profits resulting from the infringement.

While this is arguably small change for Ms Kardashian (who allegedly earns up to US$250,000 for a sponsored post on her social media sites), once legal costs and any time invested in litigation or negotiating a settlement is considered, it seems a hefty price to pay for failing to obtain an appropriate licence from the copyright owner. It is a timely reminder to social media users to ensure that they have the appropriate rights to the content they intend to use.

  1. Xposure Photos UK Ltd v Khloe Kardashian et al, 2:17-CV-3088 (C.D. Cal).

By: Jaimie Wolbers

Netflix and Italian SIAE Reach Agreement for Protection of Music Catalogue on Online Platform

In November 2016 the Italian collecting society SIAE announced that it closed a license agreement for the use of the musical and audiovisual compositions with Netflix, one of the main international operators for online video-on-demand services. The aim of the agreement is to grant  equitable remuneration to authors of audiovisual works as well as remuneration to authors and publishers of soundtracks included in audiovisual works distributed by Netflix to its Italian subscribers.

The president of SIAE commented that the execution of this agreement represents an important achievement for the recognition of creative works in the sector of digital distribution. The economic value generated by the works protected by SIAE and their distribution by Netflix is a concrete contribution to the Italian audiovisual market, providing an important opportunity for product innovation.  The agreement also should encourage professional creative activity by younger talent.

By: Alessandra Feller and Alessia Castelli

To Perform a Technical Function or Not: This is Rubik’s Question.

After the CJEU decision in case C-30/15 P, fans of three-dimensional trade marks will be wondering if the opportunity to register them is as straightforward as it appears from the recent reform of the Regulation No. 207/2009.

For 10 years, Simba Toys and Seven Towns have been involved in the Rubik’s cube saga, which began in 1999, when the three-dimensional sign reproducing the popular Hungarian toy was registered as a Community trade mark.

The application for a declaration of invalidity filed in 2006 by Simba Toys was based mainly on the infringement of Article 7(1)(e)(ii) of Regulation No 40/94, which prevents a trade mark consisting exclusively of the shape of goods which is necessary to obtain a technical result to be registered.

The EUIPO Cancellation Division as well as the Board of Appeal and the General Court rejected the arguments of the German firm on the grounds that the essential characteristics of the sign at issue are a cube and a grid structure on each surface of the cube and that they do not perform any technical function.

Hence, the appellant’s argument was rejected because the rotating capability of the lattices did not result from the shape presented, but from the invisible internal mechanism which was not part of the graphical representation filed in the trade mark application.

As often happens, the above decisions have been overturned by the CJEU. In particular, the approach of the lower courts was found to be too narrow as they did not take into account the additional elements relating to the function of the actual goods in question.

Lastly, the court held that not taking into account the rotating capability of the cube would extend the trade mark protection to any other kind of puzzle with a similar shape. On the other hand, the technical function behind the cube falls within the scope of Article 7(1)(e)(ii), which precludes the granting of a permanent monopoly on technical solutions. Therefore, in this case it would be more appropriate to consider a patent protection as it has a limited life unlike trademarks.

In conclusion, while the Rubik brand will continue to ensure its exclusivity through other trademarks, copyright, passing off and unfair competition protection, this case made it clear that an effective access to the registration of unconventional trade marks remains as uncertain as the interpretation of Article 7(1)(e)(ii).

By: Serena Totino and Michał Ziółkowski

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