Showing posts with label copyright infringement. Show all posts
Showing posts with label copyright infringement. Show all posts

Thursday, September 19, 2013

When Does Copyright Law Cease Protecting a Fictional Character? (Part I)

Sir Arthur Conan Doyle

The estate of Scottish author Sir Arthur Conan Doyle has advanced a creative -- and controversial -- legal argument, in a gambit to protect its rights to continue to control licensing the fictional personae of Sherlock Holmes and his sidekick Dr. Watson, for at least several more years.


However, under more restrictive US copyright law, only Conan Doyle's works published before 1923 are now in the public domain, whereas 10 of his works published after 1923, such as the "Case-Book of Sherlock Holmes", remain squarely under US copyright protection until as late as 2022.

Many critics vehemently argue that the US copyright system, which currently grants authors' heirs a monopoly on their ancestors' written works for as long as 70 years after the author's death, is too restrictive.  In any event, the American public is now confronted with can be legally done with a partial catalog of freely available Holmes-related texts.

Statue of Sherlock Holmes in Edinburgh, Scotland
A Los Angeles-based Sherlock Holmes expert and entertainment lawyer, Leslie Klinger, recently filed a declaratory judgment suit in Chicago federal district court, seeking a ruling that the characters of Holmes and Watson are now effectively freely in the public domain for anyone to use, regardless of whether a few of Conan Doyle's final works still remain under US copyright protection.

The Conan Doyle estate argues that the entirety of these literary characters should remain under lock and key, until the final of the books' copyrights expire.  The estate bases its argument on the logic that the characters' entire personalities, including subtle quirks and flaws, were developed in later works and are therefore embedded throughout the entire corpus of Doyle's literary contributions.  To separate characters into "earlier" and "later" would be to artificially dissect them.

This interesting case raises complex issues of unsettled copyright law.  For example, if a complex literary character "evolves" throughout many different copyrighted texts written during an author's long lifetime, as each text passes into the public domain many years after her death, does only the "immature" character become free to copy, until the entire corpus has lapsed?

Alternatively, once the first of many book's copyright expires, is the entirety of the later-developed character fair game for the public to take?

The question is not entirely academic, as Conan Doyle's estate could theoretically block the making of a television show such as "Elementary," which sets the detectives in modern-day New York, unless the estate is paid a hefty royalty.  The estate could also have blocked a new movie similar to the 2009 film starring Robert Downey, Jr. and Jude Law.

On this issue, the Conan Doyle estate faces a challenging legal landscape.  In 1999, the Second Circuit Court of Appeals confronted a virtually identical issue, and refused to rule that entire characters remained under copyright monopoly when significant previous works had lapsed into the public domain.

In that case, the appellant had wanted to create an unlicensed Broadway musical using the characters of "Amos 'n' Andy." Radio programs featuring the characters from 1928 to 1948 had lapsed into the public domain.  However, several later-created television shows remained under copyright protection.

The New York-based Appeals Court found that this latter fact was not dispositive.  In that case, the Appeals Court held that Silverman, who had wanted to utilize the characters freely, "should now receive a declaration that he is entitled to use all aspects of the "Amos 'n' Andy" materials, including names, stories, and characters, to the extent that such elements of expression are contained (or, in the case of characters, to the extent delineated) in the pre-1948 radio scripts, which are in the public domain."

In other words, the fact that some later materials remained copyrighted did not entitle the copyright owners to continue to monopolize the characters, as large aspects of their personae had been developed and become public domain years earlier.

The New York-based Appeals Court also found that no valid trademark rights in the characters remained, as they were abandoned upon the radio shows passing into the public domain.  It is yet to be seen how the District Court and the Seventh Circuit Court of Appeals, based in Chicago, will rule on this topic in the pending Conan Doyle case.

Friday, August 16, 2013

Ironically, "Blurred Lines" of Copyright Law Lead to Litigation

Summer 2013's hottest pop single "Blurred Lines" has become quite a phenomenon.  Its primary vocalist and author, Robin Thicke is the son of Alan Thicke, of the popular family television sitcom Growing Pains.

The song features controversial lyrics about the lack of clear boundaries that have been called "rapey" by feminists, as well as an R-rated music video. The video for the song was released on March 20, 2013, and was made in two versions; the first video features models Emily Ratajkowski, Jessi M'Bengue, and Elle Evans being topless, the second features them covered.



The covered version on YouTube (embedded above) has reached nearly 138 million views. However, the topless, R-rated version of the video was removed from YouTube on March 30, 2013, for violating the site's terms of service regarding nudity.  On Vevo.com, the R-rated version has reached nearly 11 million views.

The song itself has been a worldwide hit, topping the charts in Australia, Canada, New Zealand, Ireland, Germany, the Netherlands, Poland and the United Kingdom, as well as the top ten in Belgium, Denmark, Lithuania, France, Iceland, Italy, Portugal and Switzerland. As of July 17, 2013, it is the second best-selling single of 2013 in the UK.

The song features a catchy beat and chorus, clearly reminiscient of Marvin Gaye's 1977 classic "Got to Give it Up":



Thicke apparently admires Marvin Gaye's style and music, and went so far as to admit that it inspired him in this instance, but denied overtly sampling Gaye's musical compositions when writing Blurred Lines.

When asked by Yahoo! Music's Billy Johnson Jr. about the notable similarities between "Blurred Lines" and Gaye's song, Thicke said "[t]here is no sample." But he admitted, "[d]efinitely inspired by that, yeah.  All of his music ... he's one of my idols."

Sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece.

Hearing the similarity and likely believing that Gaye's music was sampled without permission, Gaye's family apparently demanded a royalty from Thicke and his co-authors, which they refused to pay.

After reaching an impasse, Thicke and his co-authors pulled the trigger first, suing Gaye's family in federal district court in California this week, seeking a declaratory judgment that the song does not infringe upon Gaye's copyrights.

“There are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements,” the suit contends. “Plaintiffs created a hit and did it without copying anyone else’s composition.”

Invocation of declaratory judgment jurisdiction is typical when it becomes clear that suit is inevitable, and when an actual case or controversy exists between the parties, based upon the totality of the circumstances.  Assuming Gaye's family asserted a clear claim of copyright infringement and demanded a royalty, and assuming that no ongoing discussions were occurring, Thicke may have been entitled to file a preemptive suit first.

Procedural wrangling aside, in any event, the underlying legal test remains the same. Did Thicke and his co-authors cross the line from inspiration to infringement?

Ironically, that line is rather blurry in this instance.

Sampling an identifiable and substantial portion of Gaye's song would likely lead to a finding of copyright infringement. Thicke has (so far) expressly denied that any form of sampling whatsoever occurred, claiming that the similarities were from simply borrowing "commonplace musical elements."  That distinction is a matter of degree, and will depend upon a close comparison of the two songs.


Sunday, December 2, 2012

UK Student Strikes Deal to Avoid US Prison Time For Web Piracy


As this blog reported in July 2012, a student in the United Kingdom was facing extradition to the U.S. on charges of illegal copyright piracy.

The student, Richard O’Dwyer, a 24-year-old college student from Great Britain, was facing possible extradition on criminal charges of copyright infringement. The possible punishment: 10 years in a U.S. federal penitentiary.

In 2008, O’Dwyer first set up a website, TVShack.net, which allowed users to search for and link to other sites, including ones that the federal authorities argue showed pirated movies and television shows.  

The US government shut down TVShack.net in summer 2010.  But Mr. O’Dwyer was apparently unbowed.  TVShack.net had been growing in popularity, and it made about $230,000 from advertising over the course of two years, federal prosecutors claim.

“America? They have nothing to do with me,” Mr. O’Dwyer had declared, according to his mother.  He then subsequently reopened his site as TVShack.cc, which he reckoned was beyond the reach of the United States.  He was wrong.

A few months later came a knock on the door from the British police. A judge ruled that Mr. O’Dwyer would not be prosecuted in Britain.  Instead, the US Department of Justice would seek to extradite him.

Prosecutors also claimed that O'Dwyer was well aware that the material was copyrighted.  They cited an announcement on TVShack that urged users to be patient with download times because they were “saving quite a lot of money (especially when putting several visits to the theater or seasons together).”

Subsequently, the BBC has reported the student has struck a deal to avoid extradition.  A High Court judge was informed that Mr O'Dwyer was expected to travel to the U.S. in the next 14 days to complete a plea agreement, pay an undisclosed sum in compensation and give undertakings not to infringe any copyright laws again.  If he does, he may face immediate extradition.