Legal Threats Over Use of Music at Political Events Escalate

Music has been played throughout American history during political events, to rouse emotion and stir patriotism.

However, as intellectual property laws evolve along with the culture of politics, several issues have risen to the forefront along with the ongoing rancor between the permanent residents of Hollywood/Nashville and Washington D.C.  As we have previously discussed, Presidential candidates are frequent targets of musicians' ire for using their songs at political rallies.

Most recently, R.E.M. objected to Fox News' use of "Losing My Religion" during coverage of the 2012 Democratic National Convention.  The pro-Democratic band argues that the use of the song falsely conveyed that it agreed with the conservative networks' critique of the DNC as secularist, stating:

REM in Concert / Wikimedia Commons / Flickr user Stark (Stefano Andreoli)

"R.E.M.'s "Losing My Religion" was used in the Fox News coverage of the Democratic National Convention last night. R.E.M. today, through its music publisher, Warner-Tamerlane Music, demanded that Fox News cease and desist from continuing its unlicensed and unauthorized use of the song." 

Michael Stipe added, "We have little or no respect for their puff adder brand of reportage. Our music does not belong there."

The intellectual property issues break down along relatively clear legal lines.

Copyright:  A songwriter possesses copyright to the lyrics and melody of a song. Additionally, performers of the song possess independent copyrights in their recordings of those songs. Both of these copyrights are licensed to the public through performance rights organizations, such as ASCAP and BMI. Most large public venues, such as sports arenas and convention halls, purchase "blanket" licenses from ASCAP and BMI, that permit them to publicly perform any of the songs contained in their catalogs.  (The songwriters and performers each get a cut of the revenue collected through a separate agreement with the performance rights organizations).

For example, at a baseball game, you may hear the choruses of Queen's "We Will Rock You," Twisted Sisters' "We're Not Gonna Take It" and other rousing anthems repeatedly.  The stadium or sports arena has typically paid a recurring license fee to publicly perform these and other songs within their arenas during events, without many restrictions. Twisted Sister then regularly gets a check from ASCAP/BMI.

However, occasionally, there is a technical copyright violation. For example, if the baseball game is broadcast on national television and the song is heard in the background, the musicians may argue that the license agreement did not cover the "synchronization rights" required for television broadcast (although other license agreements may cover this contingency).

Trademark/Right of Publicity/Implied Endorsement:  In the context of political conventions that occur within the licensed arenas, however, things get trickier.  While a public arena may possess a paid-up license to publicly perform the music under their ASCAP/BMI terms without violating songwriters' or performers' copyrights, some musicians object to their songs' use during political events on separate legal grounds.  Specifically, they argue that the politicians' use of the songs during political events in those arenas nonetheless falsely implies endorsement and sponsorship.

As previously noted, there have been a number of lawsuits filed on these grounds against candidates in both political parties.

ASCAP has issued a helpful summary of the law warning politicians to be aware that their public performance licenses do NOT guard against the Trademark/Right of Publicity/Implied Endorsement theories.

It is this authors' personal view that such alternative theories may have legal merit, depending on the facts.

For example, let's assume that a musician can prove in court that consumers (a/k/a voters) recognize a particular song as a form of source identification.

That is, if we assume that a performer can prove that the public immediately perceives a song as having direct associations with the composer and/or the band that performed the song (especially ones that are politically active and highly visible), then the song may be able to function as a trademark.

Further, if a plaintiff can then prove that a politicians' use of that song is likely to confuse a sufficient percentage of the public into believing that the songwriter/band has endorsed that politician or his/her political party's views, then that plaintiff can demonstrate all that he needs to satisfy a court that there is a likelihood of confusion and irreparable harm to his brand.

On the other hand, if the public is savvy enough to assume that the use of a song during a political event does not necessarily reflect the endorsement or approval of the songs' writers or performers and is not likely to be confused, the Plaintiff would not be able to satisfy his burden of proof, and would lose in court.

Finally, the defendant would presumably assert a "fair use" defense, claiming that the First Amendment's guarantee of free speech immunizes it from the accused intellectual property violations.  

Such a defense would probably fizzle out, if the plaintiff could demonstrate palpable harm from consumer confusion as described above.

Mars Landing on YouTube Snarled by Erroneous Copyright Complaints

NASA photo

Even cutting-edge technology from outer space can get snarled by intellectual property issues.

While NASA's photographs and videos are freely in the public domain, Motherboard reported that videos of the Mars "Curiousity" rover landing which had been posted by NASA on YouTube were removed for several hours due to erroneous complaints lodged by Scripps Media under the Digital Millenium Copyright Act ("DMCA").

Automated software called "copyright bots" perpetually scour YouTube, looking for videos that contain content that infringe copyrights.

It is not yet known why the bots erroneously assumed that the Mars landing rover footage violated Scripps' copyrights, but it is likely that Scripps had previously copyrighted similar content.

In any event, the takedowns raise broader questions about the legal propriety (and prudence) of using wholly automated bots to make decisions about what content is likely infringing copyright, and what is not.
  

Typically, a DMCA-takedown demand requires that a human being certify under penalty of perjury that he possesses a good faith belief that a particular use is infringing a copyright.  Fair use can also play a role.

However, because of the sheer volume of material available on the Internet, some content owners have delegated this delicate task to bots, leading to occasional problems.

A NASA spokesman reportedly said that these problems have occurred before, and that the space agency has tried to work with YouTube to avoid them from recurring, but to no avail.

BlockShopper: Bona Fide News Reporting or an Invasion of Privacy?

Example of a BlockShopper "Local Real Estate News Story" from St. Louis

Beginning in 2011, law firms Gioconda Law Group PLLC and Balestriere Fariello began an in-depth investigation into BlockShopper LLC.  Collectively, we reviewed hundreds of pages of public documents, collected news articles, read blogs and newsgroups, printed out screenshots and researched applicable federal state and local laws.  The following represents a summary of our findings.  We have not been compensated by anyone for our investigation, nor have we included or considered any privileged or confidential communications in this discussion.  The following is presented solely for the public’s interest in this matter.

BlockShopper LLC owns and operates an interactive Internet website that was co-founded in 2006 by Brian Timpone, a brash one-time Chicago TV reporter turned entrepreneur.  The Chicago Tribune recently reported that the 39-year-old co-founder’s latest gambit Journatic LLC struck a deal in April of this year in which the Tribune Co. agreed to invest an undisclosed amount in his 6-year-old media content provider.  But less than three months later, the Chicago Tribune reports that the partnership has become an embarrassment after ethical breaches, including false bylines, plagiarism and fake quotations, were discovered.

The BlockShopper website has also been plagued by public criticism and even an intellectual property infringement lawsuit brought by a major law firm.  For those unfamiliar with the website, they may be shocked to discover that it offers an aggregate of detailed personal information about individuals, including their names, spouses’ and children’s names, street addresses, details of their residential real estate transactions including property taxes paid, home values, photographs of their home and/or neighborhood, maps and directions to their home, educational background, employer(s), and even photographs.  Some have characterized it as a stalker's dream come true, where personal information is gathered from multiple sources and presented in a comprehensive format.  Identity thieves might also find such helpful information handy.

BlockShopper has also displayed photographs that it has reproduced and copied from personal and business websites, seemingly without the prior authorization, permission or consent of the photographers’ and/or of the individuals depicted in many of the photographs.  BlockShopper has even copied and displayed images of individuals taken from their personal profiles on popular social networking sites such as Facebook^®, MySpace^® and LinkedIn^®, seemingly without the prior approval or permission of those individuals or companies.

The BlockShopper website is profit-driven, although it styles itself as a “local real estate news” reporting tool and does not charge for general access.  Despite its controversial nature (or perhaps in part because of it), the BlockShopper website receives nearly 1 million hits per month.  BlockShopper uses this substantial traffic to woo advertisers and real estate agents, bragging that it is currently operating in many geographic markets across the United States, and that its audience and reach is rapidly growing.

However, not everyone whose information and images are displayed on BlockShopper becomes a fan of the unexpected notoriety.  Indeed, Timpone was personally named in a lawsuit brought by Jones Day, a large national law firm in Cleveland, Ohio for his conduct, but he chose to settle and remove numerous images of that law firm’s attorneys to avoid the expense of further litigation.  To settle that case, BlockShopper’s management team agreed that “it will not use photographs appearing on the Jones Day website without the prior written approval of Jones Day.”

But news articles reported that the Jones Day lawsuit had no meaningful long-term effect on addressing BlockShopper’s overall approach: “The Jones Day lawsuit is not slowing the [BlockShopper] site down from expanding into new markets.  Last weekend, BlockShopper launched in three new cities--Cleveland, Washington, and Phoenix.  That’s on top of the company's recent expansion into Seattle, Philadelphia, New York, Los Angeles, and additional neighborhoods in Illinois.”  Since then, BlockShopper covers even more geographic areas.

Numerous blogs, including StopBlockShopperNow.com and "BOOM" (the "BlockShopper Opt Out Movement"), Facebook pages and public newsgroups have sprung up, reporting that hundreds of individuals have repeatedly complained to BlockShopper and unsuccessfully demanded that their personal information be removed from the website. Complaints have flooded consumer complaint boards, and State Attorney Generals’ offices have gotten involved. BlockShopper has even received complaints about dangerous individuals viewing the aggregated personal information that BlockShopper provides, in order to violate restraining orders.

Specific law enforcement-related complaints seem to have forced BlockShopper to remove at least some listings.  But in many cases, Blockshopper has received numerous, repeated complaints from individuals demanding that their personal information be removed from the website, but adamantly refuses to remove such placement, claiming that its conduct is fully protected by the freedom of speech and of the press.  


The BlockShopper website defends its stance in its“Frequently Asked Questions” section:

Public records are public for a reason. That is, your name isn’t on the title of the property you own—for all to see—to facilitate neighbor nosiness but because it is in the collective public interest. The most important charge of a local government is to guarantee land title; to keep accurate, timely records of who owns what. If we couldn’t learn the “who,” uncertainty would reign and land transactions would slow to a crawl. This would be bad for everyone’s house value. Furthermore, the prices we pay for our homes are public as they serve as the basis for local property taxes. Keeping this information like a secret would result in a lucky few paying too little, while the rest of us pay too much. In the spirit of fairness, we report public records as they are reported to us. We do not eliminate records on BlockShopper.com, as doing so compromises the integrity of our data.

But BlockShopper goes even further than just reporting real estate data, like Zillow.com does.  BlockShopper’s display has included hundreds of photographs taken wholesale from hospitals’ and physicians’ websites, colleges and universities’ sites, small businesses’ sites as well as directly from private individuals’ websites.

160+ Complaints and Negative Reviews of BlockShopper Appear on ConsumerAffairs.com

These people are not what the law would traditionally deem “public figures.”  In fact, BlockShopper has mostly appropriated images of otherwise private individuals such as secretaries, librarians, computer programmers, graphic designers, accountants, teachers, physicians, dentists, engineers, architects and photographers and others.  


Therefore, the core legal question presented by the BlockShopper model is whether the copying, reproduction and display of aggregated information about private individuals alongside their headshots are activities that constitute bona fide “news reporting” about real estate transactions that are protected by the First Amendment, or are really just an invasion of privacy cloaked in the guise of news.

For better or worse, from a precedential standpoint, BlockShopper may have the better of the legal argument when it comes to the legal standard of “newsworthiness.”  In the geographic markets where BlockShopper collects its data, the county clerks’ offices, the privacy statutes and the courts have consistently stated that the test for “news reporting” is liberally applied.  See, e.g., Illinois law (1075/§ 35 (b) (right to control one’s identity does not apply to “non-commercial purposes including any news, public affairs…”); see also Messenger ex rel. Messenger v. Gruner + Jahr Printing and Pub, 94 N.Y.2d 436, 727 N.E.2d 549 (New York Ct. of Appeals, 2000) (“where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability … unless the picture has no real relationship to the article or the article is an advertisement in disguise”; Maheu v. CBS, 201 Cal. App. 3d 662, 675 (1988) (“even a tortious invasion of privacy is exempt from liability if the publication of private facts is truthful and newsworthy.”).


Nonetheless, many individuals and commentators have voiced concerns that a public policy that permits unrestricted and widespread conduct of the sort engaged in by BlockShopper would result in a substantially adverse impact on the actual and/or potential marketplace – but marketplace for what? 

Because the discrete information that BlockShopper aggregates is generally available from county clerk’s offices anyway, and Internet-posted headshots are not usually offered “for sale,” it is not clear what exact “marketplace” is being negatively affected.

In a broader sense, one could argue that BlockShopper’s unauthorized appropriation of images and information from social networking sites may serve to deter private individuals from engaging in socially productive interaction on the Internet.  In fact, Brian Timpone warned the public to this negative impact in a news interview:  “If you don’t want to be on BlockShopper,don’t promote yourself on the Web.”  

But private individuals and copyright holders making images of themselves visible on the World Wide Web could theoretically argue that they have not legally consented to BlockShopper’s appropriation of those images for BlockShopper’s commercial gain.  

Therefore, there is at most an unresolved legal question as to whether BlockShopper’s display of headshots is a legally-permissible “fair use” of those particular images in connection with bona fide news reporting about those individuals.

Finally, many individuals sincerely believe that BlockShopper’s conduct violates their individual right to privacy.  However, they may be surprised to discover that laws regarding the privacy of truthful facts are not as restrictive as one might think.  If BlockShopper has accomplished nothing else, it has contributed to a collective legislative push by some to get real estate data privacy laws toughened up at the county and local levels.

In conclusion, the thorny legal issues surrounding BlockShopper’s website, and other identity aggregators like it, remain mostly unresolved at a national level.  Those who remain disturbed and disgusted by BlockShopper’s approach and question the bona fides of its “news reporting” may best be served writing their local legislators about making the data surrounding their local real estate transactions private.

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules

A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.


The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"

The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.

Who Owns Police "Mug Shots"?

Unless you are John Gotti or Robert Downey, Jr., if you have ever been arrested and had your police "mugshot" taken during routine booking procedures, you may find yourself staying up at night worrying about where that mugshot may someday end up. 

Depending on your level of notoriety, websites such as MugShots.com and TheSmokingGun.com are giving some people good reason to worry about just that.

MugShots.com calls itself a “search engine for Official Law Enforcement records, specifically booking photographs." While TheSmokingGun.com focuses on historical and "high profile" figures, some websites have been accused of "extortion" and "blackmail" for publishing mugshots of wholly private individuals who were -- at some point in their lives -- accused of crimes ranging from disorderly conduct to armed robbery.  Some of these sites will offer to remove your mugshot, for a fee of course.

Putting aside the thorny privacy issues involved, an intellectual property question has been raised:  "Are these mugshots in the public domain?"

The answer from an intellectual property practitioner's perspective is that mug shots are not necessarily in the public domain, and third party websites do not possess an automatic exemption from infringing otherwise validly owned federal copyrights.

According to the MugShots.com website, "originally collected and distributed by Law Enforcement agencies, Booking records are considered and legally recognized as public records, in the public domain." That site claims that it "republishes these Official Records in their original form ("as is") under the First Amendment to the United States Constitution, the freedom to publish true and factual information. Our intent is to provide a legitimate and useful service for both the private and public sectors."

MugShots.com goes on to say that "all information on the mugshot pages on Mugshots.com was originated [sic] with law enforcement agencies.  We publish the information "as is" and do not edit it."

There are several serious flaws with these legal arguments.

After 1976, the Copyright Act provided that copyright attaches automatically upon the creation of an original work that is fixed in a tangible medium of expression. After 1976, copyright protection is automatic and vests instantly in the photographer.

Therefore, after 1976, when a police officer or civilian photographer stood behind a camera and snapped a mugshot, it is that photographer who technically owned the copyright in the image the very instant it was created in tangible form.  Before that, much stricter copyright notice requirements applied, forcing many photographs published without notice into the public domain.

Elvis Presley in a 1956 mugshot/
Wikimedia Commons / Public Domain

If the photographer was an employee of the U.S. federal government, then the legal analysis ends.  The U.S. federal government has openly disclaimed any and all copyright ownership in its documents, including mugshots.  Therefore, such mugshots, once released, are freely in the public domain for copyright purposes, and can be reproduced, altered or used in any form without violating federal copyright laws.  (It is worth noting that a federal appeals court recently ruled that there is no Freedom of Information Act obligation for the feds to release mugshots).

However, thousands of the mugshots that appear on these sites appear to have been taken by photographers that were employed by state and local police and sheriff’s departments, and who took the photographs in the course of their duties.

In those cases, the individual photographers who took the mugshots presumably entered into an employment agreement assigning ownership of the photographic work product to their employers.  So whatever copyright inhered in the mugshots when they were first taken by the photographer would be assigned to the police department or municipality.

Further, each local municipality and police department has its own laws, policies, regulations dictating who now owns copyrights to the mugshots, and who can use or distribute them, and for what purpose.

Some local jurisdictions take the approach that mugshots are valuable to law enforcement only during ongoing investigations, and restrict access to them until the case is resolved.  Others take a more open approach similar to the federal government, and waive any copyrights they might otherwise have owned in these images, regardless of how they are subsequently used or exploited.  Others go even farther, and encourage the public viewing of these images as a deterrent.

So, if a local police department has not otherwise waived its copyrights to the mugshots, as a technical matter, for a website to display, reproduce them or alter them for commercial gain would likely constitute a prima facie case of copyright infringement.

Indeed, it is worth noting that such a site would arguably infringe upon every single aspect of the copyright statute – the right to display, reproduce and even modify/alter the images. For example, despite its own claim that the images are reproduced verbatim from government files, it appears that every single mugshot on MugShots.com contains an embedded watermark, which was obviously added later.  Such conduct could violate the federally-recognized copyrights of local police departments which have not otherwise disclaimed their copyrights in and to control how these images are altered or used to create derivative works.

What about Fair Use?

Fair use is a defense to infringement, not an automatic exemption.  Indeed, the Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  This means that, in litigation involving allegations of copyright infringement, the defendant squarely bears the burden of raising and proving that his use was "fair" and not an unauthorized infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.  If the work was not copyrightable, if the term had expired, or the defendant's work borrowed only a very small amount, for instance, then the plaintiff cannot even make out a prima facie case of infringement, and the defendant need not even raise a fair use defense. However, as discussed above, a prima facie case of copyright infringement could theoretically be asserted by a municipality or police department that had not otherwise waived its copyright to control the commercial exploitation of these images.  Whether or not such a case will ever be filed is currently unknown.

Unfortunately, for those arrested for disorderly conduct outside a bar twenty years ago, and who were mortified to discover their faces displayed on a commercial website and want to demand legal action under intellectual property laws, you will have to wait.  Under current federal copyright law, you probably don't have standing to sue on behalf of the copyright holders.

Why Don't Presidential Candidates Seem to Respect Intellectual Property?

Gage Skidmore / Wikimedia Commons

It seems like many candidates for President of the United States just don't seem to understand how to avoid being accused of copyright infringement.  Here are a few cases in point:

Presumptive Republican candidate Mitt Romney recently launched a YouTube campaign advertisement depicting President Obama, and using the song "Happy Together," without authorization from the songwriter.  The ad is pulled by YouTube as an alleged copyright infringement.  


Earlier in the race, Newt Gingrich used Survivor's "Eye of the Tiger" without permission and was sued for copyright infringement.  In 2010, Rand Paul received a cease and desist letter from Canadian rock band Rush's lawyers for similar behavior with respect to their songs.  And Senator John McCain was sued by Jackson Browne for using the song "Running on Empty" in his 2008 campaign.

Daniel Schwen / GNU Free Documentation License 

But artists aren't only targeting Republicans.  In 2008, President Obama's campaign received a cease and desist letter from duo Sam and Dave about the song "Hold On, I'm Coming."


NPR correctly points out that a blanket license from ASCAP/BMI/SESAC for the particular venue that the candidate is using may already license the song for the copyright royalties covering public performance.


However, not to be outsmarted, the artists have alleged a less clearly-defined trademark infringement theory.  They cleverly contend that the unauthorized use of their music falsely suggests endorsement, sponsorship or approval by the musician.


In any event, what the trend signifies is not so much that the Presidential candidates are a bunch of copyright thieves as it demonstrates that the legal lines between commerce, the First Amendment, politics and copyright/brand protection can be quite murky, as we have previously noted.