Posts tagged with "copyright infringement"

Did You Know: Open Source Software (“OSS”) Is a Major Player in Software Development & Use

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The open source software (“OSS”) revolution affects most software applications. A 2015 survey found that 78% of the companies questioned ran their operations on OSS.[1]/  Its expanded inclusion has resulted in great savings in time and money in the creation of software products.  However, when the creator of the OSS releases it, she often does so under a license expected to promote its open availability and use. In order to avoid risks of violating the creator’s licensed conditions, business owners and developers should know whether any OSS is present and under what terms it may be used.

Working with an intellectual property attorney familiar with the issues associated with open source software, developers and businesses can better manage their security, legal and operational risks by:

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guitarLed Zeppelin, Robert Plant and Jimmy Page remain defendants in a copyright infringement case brought on behalf of the estate of guitarist Randy California.  If the case moves forward, the trial is set for May 10, 2016.   The California estate alleges that important parts of “Stairway to Heaven” were based on music from the song “Taurus” written and performed by California.

Check out NPR’s recent take on the case as it allows you to hear and decide for yourself whether “Stairway to Heaven” plagiarized “Taurus.”  [NPR Story]
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Because many creative people participate in the making of an artistic, documentary or commercial film, in order to exploit the film efficiently, it is critical to pinpoint who owns the copyright in the finished work as well as in the raw footage.

Congress recognized that an unwieldy situation could arise with respect to the control of a film’s copyright unless there was a way for all copyright interests to reside with a single owner. This is because if a non-employee of the producer made a creative contribution during a film’s production, such contribution could be viewed as copyright protected. To address the problem, Congress adopted a mechanism in the Copyright Act of 1976 (the “Act”) which treats any such contribution as a work-made-for-hire (“WMFH”) [WMFH Described] if the parties so agree in a signed document. Under such circumstances, all copyright rights in any creative contributions belong to a single owner, most likely the producer.

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Can You Learn Anything from Monster Energy’s Run-In with the Beastie Boys?

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The dispute that led to the legal battle between the Beastie Boys band and Monster Energy Company (“Monster”), involved Monster’s use without permission of songs by the Beastie Boys and verbal references to the band and a member, Adam Yauch, in a promotional video. Monster’s negligible music licensing procedures were strongly criticized by the trial judge. The one-sided victory of the Beastie Boys for copyright infringement and false endorsement has led to Monster being found financially liable for its misjudgment.

In an earlier blog [Justin Bieber et al], I considered the misuse by one musician of the works of another. The Beastie Boy’s case gives guidance to business owners who wish to incorporate the intellectual property of others in their marketing and other creative endeavors with impunity.

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What Do Justin Bieber, Usher Raymond, Robin Thicke, Pharrell Williams and Sam Smith Have in Common?

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Music concertJustin Bieber, Usher Raymond, Robin Thicke, Pharrell Williams and Sam Smith have all recently been challenged by claims of copyright infringement based on allegations that they incorporated other people’s music into their recordings. If celebrities can be found liable for copyright infringement and ordered to pay millions of dollars, what should non-celebrity musicians and producers do to avoid a similar fate?

In the case involving Bieber and Usher [Some Background], musician Devin Copeland alleged that they had used material from his 2008 song titled “Somebody to Love” in their 2010 hit with the same name. The trial judge granted Bieber and Usher’s motion to dismiss the case on the grounds that no reasonable jury could find the two song sufficiently similar to find the duo liable for copyright infringement. However, on appeal in 2015, the Fourth Circuit found the two songs to be “cohesive wholes, without distinguishing between protected and unprotected elements, just as the works’ intended audiences likely would encounter them in the marketplace,” and reached the opposite conclusion. The case has now been sent back to the trial court, which forces Bieber and Usher to settle or face a jury trial.

After being contacted by the family of Marvin Gaye, Robin Thicke and Pharrell Williams sought a declaratory judgment that their 2013 song, “Blurred Lines,” did not infringe the copyright in Gaye’s 1977 hit “Got to Give It Up.” The heirs of Marvin Gaye brought counter-claims of copyright infringement. The matter survived a Williams/Thicke motion to dismiss and was sent to a jury. In 2015, the jury found that there was substantial similarity between the two songs and the Gaye family was awarded $4 million in actual damages and $3.38 million in lost profits. [More Detail] The question as to whether the Gaye Family will also be granted injunctive relief (i.e., preventing Thicke/Williams from reproducing, performing, etc. “Blurred Lines” and impounding existing copies of the song) remains open, as it appears that neither side is prepared to give up the fight.

By contrast, in 2014, a potentially litigious dispute between Sam Smith, a British soul singer, and Tom Petty, an American folk rocker, was avoided. Soon after the release of “Stay With Me,“ by Sam Smith, his publisher was contacted by the publishers of ”Won’t Back Down,” co-written by Tom Petty and Jeff Lynne, who asserted that the choruses in the two songs were similar. By way of defense, Smith said, “It was a complete accident. I am 22 years old…. I’ve never listened to that song.”  [Smith’s Quote]

We will never know whether Mr. Smith’s protestations of “no access” (a key element in proving copyright infringement) to the Petty song would have carried any weight with a jury because the parties entered into a settlement with Smith acknowledging the similarities between the two songs, giving Petty/Lynne writing credit and 12.5 percent of the royalties from “Stay With Me.”

The outcomes from these scenarios offer guidance for song writers, performers and producers:

• Because music is easily accessible over the Internet and other media, expect that if there are similarities between your work and that of another, you will hear about it.

• If you are in doubt about whether your song is derivative of someone else’s, then consider testing it prior to public release against the song in question before an audience composed of likely intended consumers.

• If you know that you will incorporate the work of another in your song, then obtain a license to do so. The fee you pay before your song becomes famous will most likely be far less than the damages you will pay after it becomes famous.

• If it is your idea to create an “homage” to another performer or to recreate a genre, then consider carefully how you go about composing the work. It is one thing to write and perform music in a certain genre or the performance style of a particular singer, and quite another to incorporate actual material from a work or imitate the sound of the recognized performer. In addition to claims of copyright infringement, you could face the charge of violating the celebrity’s right of publicity. Bette Midler successfully sued Ford Motor Company for violating her right of publicity by using without her permission a sound-alike in a TV commercial. [Midler v Ford Details]

• Be aware that if your work is challenged, during the course of a trial, it will be subject to minute examination.

• If your work is challenged, consider the path laid out by Sam Smith, find a way to settle the matter.

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     One of the benefits of registering your copyright in a work with the US Copyright Office is the opportunity to seek recovery of your attorney’s fees if you subsequently pursue an infringement action and are the “prevailing party.”

      Without registration prior to the alleged infringement having taken place, the weapon of being able to collect attorney’s fees from the defendant will be unavailable to you.  However, before you choose to sue another party for copyright infringement, given the language of the statute, be advised that should you be unsuccessful in your claim, you could find yourself paying the legal fees of your adversary.      

     That is exactly what happened to Mattel, the creator of Barbie dolls, in its eight-year unsuccessful copyright infringement battle with MGA Entertainment, creator of the Bratz dolls.   The Ninth Circuit upheld the trial court’s award requiring Mattel to pay MGA more than $137 million for its attorney’s fees. . Ouch!

     Section 505 of the Copyright Act (“the Act”) gives the trial judge the discretion to “award a reasonable attorney’s fee to the prevailing party. . . .”  In deciding whether to award attorney’s fees, a trial judge determines who prevailed and whether the award will further the purposes of the Act.  Merely because the plaintiff asserts claims that might be considered “objectively reasonable,” such will not thwart a prevailing defendant from successfully arguing for its attorney’s fees.

      Urging meritorious copyright defenses can be one way to advance the purpose of the Act, which is “to stimulate artistic creativity for the general public good.” In the battle of the dolls, the trial court decided that because MGA vigorously defended against Mattel’s claims, competition in the market place was allowed to advance.

      What to take away from Mattel’s expensive lesson? 

      Before pursuing a claim of copyright infringement, perform a careful analysis of what defenses the infringer is likely to assert and whether you can overcome them.  Also, be certain that you have exhausted all other avenues to resolve your dispute – including mediation or other alternative means of dispute resolution.   Remember, once you enter into litigation, it can be difficult to extricate yourself from the consequences of that choice.


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When advising artists, authors and song writers about ways to protect their interests in their creative works, I encourage them to file for copyright registration.  But even if you follow all of the rules and register your copyright, you may still come up short when it comes time to enforce against infringers.

While the exclusive rights associated with copyright ownership attach as soon as the work is fixed so that others can perceive it, registration with the Copyright Office is necessary in order to enforce those rights in court.  Additionally, registration offers some other benefits to the copyright owner, namely the opportunity to ask for statutory damages and attorney fees.

As a copyright owner, you want to be in a strong bargaining position when confronting an infringer.  Being able to threaten to seek statutory damages and attorney fees can be a big stick.  However, even when you appear to have a clear-cut case of infringement, there will be hurdles that you must surmount if you are to achieve meaningful relief.  A recent case decided by the U.S. Court of Appeals for the Second Circuit illustrates well what problems a copyright holder may face.

The facts are that songwriters, Bryant and Bernfeld (“B&B”), wrote and produced two albums of songs, each containing 10 songs. B&B registered with the Copyright Office not only the two albums but also each of the songs individually.  They entered into an agreement with Media Right Productions (“Media”) authorizing Media to market the albums, but not to make copies of them.  If Media needed more albums, B&B would give them the copies.  Media, in turn, contracted with Orchard Enterprises (“Orchard”), a music wholesaler, to sell the music.

Over the course of time, Orchard started to sell copies of the albums and individual songs in digital format.  The actual sales were very modest generating only a few hundred dollars.  Eventually, B&B learned of this development and sued both Media and Orchard for copying and selling the works without permission.  Clear copyright infringement, right?

The Copyright Act allows a judge to award statutory damages between $750 and $30,000 for all infringements with respect to any one work.  Because B&B had registered their works with the Copyright Office before any infringement took place, they were eligible to seek statutory damages.  Given that the actual damages would have been meager, seeking statutory damages was the way to go. But what constituted a “work” in this case to calculate damages—the two albums or the twenty songs?

The Second Circuit concluded that because the plaintiffs had issued their works as two albums, in other words as a “compilation” work, rather than as individual songs, they could receive statutory damages only for infringement of the two albums.  The Court was not persuaded by B&B’s argument that in the digital age it was easier for infringers to make parts of albums separately available.

Other examples of situations where plaintiffs were limited to one statutory damage award are:  computer generated clip art issued in one package; and photographs of plant seedlings included in a catalog.

As this case study shows, it is hard to anticipate how best to protect artistic works from copyright infringement.  Also, choosing to release each work independently may not be feasible given that the real value of each work exists only in being part of a collection.  Faced with such a dilemma, your enforcement options could be limited, even with the best set of facts.