Guide Through the Legal Jungle

Gingrich and Romney's Copyright Troubles

I have previously blogged about How Copyright Blunders Push Political Campaigns Off-Course. The election cycle is providing new – but not necessarily fresh – examples of those blunders.

Newt Gingrich’s Use of “Eye of the Tiger”

Frank Sullivan, a founding member of the Survivor, has sued Gingrich for use of one of the musical group’s signature songs, “Eye of the Tiger”. Sullivan complains that “Gingrich took the stage at political conferences and similar public events as a recording of ‘Eye of the Tiger’ was played over the public address system”. Sullivan’s complaint is legally weak. As long as the campaign or the venue for the rallies had a public performance license, performing "Eye of the Tiger" at a public rally is just fine. In the United States, ASCAP, BMI, and SESAC issue most public performance licenses in the form of blanket l icenses covering all the songs in the organization’s catalog.

Sullivan also complains that a political group working with Gingrich posted online video recordings of the rallies with “Eye of the Tiger” playing in the background. The rules for using music at a political rally do differ from the rules for using music in a political ad or video. While one does need a synchronization license to use a song in a video, the circumstances described in Sullivan’s complaint sound more like the song was captured on video as background during the recording of a newsworthy event. Whether licenses are required for such incidental use of music is a question that often tortures documentary filmmakers. Many media industry professionals argue that such an incidental use is a fair use. However, the few court opinions indirectly addressing the question do not provide a clear, universal answer.

Mitt Romney’s Ad Featuring Tom Brokaw

A recent anti-Gingrich 30-second political ad posted by Mitt Romney consists only of a 1997 clip from NBC’s “Nightly News”. In the clip, Tom Brokaw reports that Congressional members have found Gingrich guilty of ethics violations. NBC has already sent a cease and desist letter asking that Romney stop using the ad. Romney’s campaign characterizes the use as a fair use. Even though Romney uses the clip within the context of political commentary, fair use may be difficult to show since the ad includes no added voice-over or other original material. I’m surprised that Romney’s campaign learned no lessons from Robin Carnahan, the 2010 unsuccessful Missouri candidate for the U.S. Senate. Fox News sued Carnahan after she released a political ad containing 30 seconds of Fox News Network footage.

How Copyright Blunders Push Political Campaigns Off-Course

Missteps in copyright and intellectual property law can send a political campaign off-track and off-message. Even when a copyright blunder doesn’t lead to formal legal action, it distracts from the candidate’s core political message. Here are a few intellectual property landmines on which an unwary political campaign might stumble.

Selecting the Wrong Music.

The right music can energize rally attendees and add oomph to a candidate’s televised message. In contrast, the wrong music selection can generate cease nd desist letters, lawsuits, and negative public comments from peeved musicians who don’t agree with the campaign’s views and don’t want their music associated with it. Recent political campaign music skirmishes have involved John McCain against Jackson Browne, Sarah Palin against Heart, and U.S. Senate candidate Chuck DeVore against Don Henley. Campaigns should also note that selecting music for a political ad demands more care than the selection of music for a political rally.

Failing to Acquire Domain Names and Social Media User Names.

Today’s political campaigns increasingly rely on internet communications and need to acquire appropriate domain names and social media account names. In general, domain name registrars and social media networks issue names on a first-come, first-served basis without doing any conflict check. That’s bad news for campaigns slow to secure domain names and social media account names featuring the candidate’s personal name – especially if an opponent gets them instead. While a candidate can sometimes re-claim a domain name that incorporates his personal name, under certain circumstances, it is completely legal for a campaign to use a domain name that features the personal name of an opposing candidate.

Stepping Outside Copyright Fair Use Boundaries.

Using someone else’s copyrighted work is infringement unless fair use or another exception to copyright protection applies. Unfortunately, identifying the line where fair use ends and copyright infringement begins is not always easy. Past political seasons have generated copyright infringement allegations against U.S. Senate candidate Sharron Angle, Senator Harry Reid, and U.S. Senate candidate Robin Carnahan.

Not Vetting Stock Footage.

Stock footage is pre-existing footage program producers incorporate into their productions. While there is nothing inherently wrong with using properly licensed stock footage, there can be a downside. Hillary Clinton plunged into that downside during her 2008 Presidential bid when her campaign used eight-year old stock footage in the red phone ad. The footage featured Casey Knowles as a child. The problem was the grown-up Knowles had become a staunch Barack Obama supporter and was not shy about publicly identifying herself as such. That story angle dominated coverage of Clinton’s campaign for several days.

Keeping It Legal While Getting Your Next Harry-Potter-Fix

I admit it. I’m a Harry Potter fan (albeit perhaps not a die-hard fan). I’ve “read” all the books a la Jim Dale’s superb audiobook narration and I’ve seen four of the films and have every intention of eventually catching films nos. 5 – 7 by dvd or netflix one day soon.

Now that the final film is out, how will extreme fans get their next Harry-Potter-fix? Here are some suggestions for the fans who want to keep things legal:

Websites & Books. Fans can create websites, social media networks, and reference books that explore and expand the Harry Potter world. J.K. Rowling and Warner Brothers typically welcome most such fan creations. And even if they didn’t, the First Amendment gives all fans the right to comment on and even criticize or parody the object of their fandom.

Fan Fiction/Films. Fan fiction and fan films are potential avenues for Harry Potter fans. While much fan fiction and fan films qualify as copyright infringement, Rowling has embraced fan fiction as long as it remains non-commercial and does not push the Harry Potter world into highly objectionable directions.

The Caveat. Nevertheless, Harry Potter fans should be aware that their idolatry can go beyond legal boundaries. Fan don’ts include selling products or commercial advertising in conjunction with fan creations and inaccurately referring to their offerings as the “official, authorized versions”. Rowling did file a lawsuit against a Michigan-based publisher that planned to publish a 400-page Harry Potter compendium duplicating much of Rowling’s original writing.

A New Wrinkle in Your Use of Public Domain Materials

Using public domain materials is an option for those who want to avoid the complications of clearing rights and the expense of paying licensing fees. There are already pitfalls in determining what is and is not in the public domain although I do try to explain public domain status here in 60 seconds. A federal court in the 8th Circuit has just added a new level of complexity to the use of public domain works.

Background

In the case of Warner Brothers v. X One X Productions, X One X and Avela acquired and licensed images from The Wizard of Oz, Gone with the Wind, and several Tom & Jerry short films. The images were from the films’ publicity materials such as movie posters, lobby cards, still photographs, and press books. The publicity materials had been distributed without a proper copyright notice which at the time (1939 – 1957) was a requirement for copyright protection. Hence, while the films are still protected by copyright, the publicity materials used by X One X and Avela are now definitely in the public domain.

The Court's Do's & Dont's for Using Public Domain Materials

The problem was not that X One X and Avela used the public domain materials. The problem was how they used the materials. According to the 8th Circuit:

• It is acceptable for X One X/AVELA to reproduce in two dimensions an image from any one item of publicity materials even if X One X/AVELA used or licensed the image for use on merchandise such as shirts, lunch boxes, and playing cards.


• It is not acceptable for X One X/AVELA to combine two or more public domain images on a single item or to use a public domain image with a phrase from the book on which the film was based. According to the court, such use appropriated original elements of the film. For example, a t-shirt with a publicity shot of Judy Garland as Dorothy might include the phrase “There’s no place like home”.


• It was not acceptable for X One X/Avela to use a two-dimensional publicity shot as the model for creation of a three-dimensional image/product such as an action figure or figurine. The court reasoned that the additional details required to transform the two-dimensional image to a three-dimensional object were drawn from the films and, thus, was an infringement of original elements of the still-copyrighted films.

Observations from One Attorney Who Actually Has to Advise Clients on This Stuff

Principles underlying the court’s rejection of the second and third uses seem difficult to apply. The case also leaves some unanswered questions. For example, would it have been acceptable if the X One X/AVELA designers used details from their imaginations when creating a three-dimensional image from the two-dimensional publicity shots?

I specifically disagree with the court’s conclusion that combining a publicity shot with a phrase from the book, The Wonderful Wizard of Oz (which is in the public domain) would still be an infringement of the copyrighted film, The Wizard of Oz.

Since this is an 8th circuit decision so it is only binding within the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South D akota), so we’ll have to see if any courts outside the 8th circuit follow it. You can read the full Warner Brothers v. X One X Productions decision here.

Here’s the take-away message from this case for those who want to use public domain materials. If the public domain materials are associated with a work still under copyright protection, copyright infringement is a potential risk if you stray from an exact reproduction of the public domain work.

NBC Harry-Potter Lawsuit Raises Copyright-Font Issue

A while ago I blogged about copyright protection for fonts, the risks of using font exchanges, and a client’s pursuit of a font license for use on a company logo. The client story had a happy ending.

I don’t see tons of font copyright issues in my entertainment and intellectual property law practice. They are apparently on the rise. The P22 Type Foundry just sued NBC Universal for using P22’s Cezanne font software to create various Harry Potter merchandise. The Hollywood Reporter offers an interesting article about the lawsuit.

Copyright Office Takes Steps to Close Termination Gap for Pre-1978 Works

A copyright owner who transfers or sells the copyright in his work can terminate the transfer and reclaim his copyright after a number of years.

What’s the Termination Gap?

Two provisions of the Copyright Act address termination rights. Section 203 of the Copyright Act allows you to reclaim the copyright in a work you assigned on or after January 1, 1978. Section 304 of the Copyright Act allows you to reclaim the copyright in a work that existed prior to January 1, 1978. There is a narrow gap in that neither of these sections explicitly address termination rights for a work assigned prior to January 1, 1978 but not actually created until after January 1, 1978. I discuss and give examples of this termination gap in a previous blog posting.

Clarified Copyright Regulations

The Copyright Office recently took a baby step towards closing the termination gap by amending its regulations governing the required Section 203 termination notice. The Copyright Office will accept and record section 203 termination notices even if (i) the work was assigned prior to January 1, 1978 and (ii) the work was created on or after January 1, 1978. The Copyright Office rationalizes that these so-called gap grants can be terminated pursuant to Section 203 because it is not legally possible to transfer a copyrighted work until the copyrighted work actually exists.

More Work to Do

That’s where the Copyright Office stopped its official efforts to resolve the termination gap. According to the Copyright Office, any additional disputes over whether copyrighted works falling in the gap can be terminated under Section 203 must be settled by the courts or by Congress.

Brief Analysis of Google Book Settlement Rejection

A New York federal court has rejected the class action settlement agreement negotiated between Google and members of the publishing industry. The settlement agreement with its attachments runs 300+ pages. I did a 10-page annotated summary of the proposed Google Book Settlement Agreement which you can find here. While my annotated summary prepared in mid-2009 does not incorporate the November 2009 amendments, it still provides a good overview of the settlement agreement’s complexity.

Perhaps the most significant language of the 48-page opinion is on page 46 when Judge Denny Chin writes “ . . . many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an opt-out settlement to an opt-in settlement.” Judge Chin discussed numerous objections to the settlement:

1. Notice to Members of Class Is Adequate. Judge Chin concluded that the class received adequate notice of the settlement. The settlement applies to anyone who has a copyright interest in a book that was published on or before January 5, 2009. I know many authors who were unaware of the settlement or unaware of its significant impact.

2. Class Representation Is Not Adequate in All Respects. The named plaintiffs in the class action are the Authors Guild, the Association of merican Publishers, McGraw-Hill Companies, Simon & Schuster, John Wiley & Sons, and five individual authors. Judge Chin concluded that the interests of these named plaintiffs are not always consistent with the interests of all authors and publishers in the class who would be affected by the settlement.

3. Scope of the Settlement Is Too Broad. This lawsuit started as a result of Google digitizing books and posting snippets of those books in search results. In addition to allowing the continued posting of snippets, the settlement would in many cases authorize Google to sell and merchandise complete books without direct authorization from copyright owners. The settlement would also release Google from other potential author and publisher claims that were not the original focus of the lawsuit. Most troubling, the settlement gives Google a work-around for orphan works, a task more appropriately left to Congress which has considered orphan works legislation in the recent past.

4. The Settlement Is Inconsistent with Copyright Law. It is the copyright owner’s exclusive right to determine who may use his work. A copyright owner’s silence or inaction can not be deemed to be consent or permission to use the copyright owner’s work. Yet, this would be the result of an opt-out versus opt-in Google settlement agreement.

5. The Settlement Raises Antitrust Concerns. The settlement would give Google a de facto monopoly over orphan works and other unclaimed works. While Google would have millions of scanned books in its database which Google could use for commercial purposes, Google would not be generous about sharing that database with other commercial users.

6. The Settlement Raises Privacy Concerns While Google would be able to collect significant data about what and when people read, Judge Chin did not see privacy issues as “a basis in themselves to reject the proposed Settlement”.

7. The Settlement Raises International Law Concerns The class includes non-US works that were registered with the U.S. Copyright Office or that were published in Canada, the United Kingdom, or Australia, on or before January 5, 2009. Subjecting foreign authors and publishers to the terms of the Settlement may violate provisions of the Berne Convention and other international copyright treaties.

In conclusion, Judge Chin found that the settlement was not fair, adequate, and reasonable. You can read the entire opinion here.

Internet Legal Trends to Watch. Part 4: Copyright’s Race to Keep Up with the Internet?

Along with the entry of internet access into more homes and into our daily lives comes more opportunities for piracy and new attitudes about copyright law. In response, content owners have tried to squelch the unauthorized online sharing and copying of their copyrighted content.

Starting with the RIAA

Beginning in 2003, the Recording Industry Association of America (RIAA) sued or threatened to sue over 35,000 individuals who participated in P2P file sharing of music. Most of the RIAA lawsuits never went to trial and resulted in settlements in which the accused file sharer paid a settlement fee of several thousand dollars. Due in part to complaints against RIAA’s methods and the failure of the lawsuits to deter piracy significantly, the RIAA has phased out its strategy of suing individual file sharers.

Righthaven Follows

However, other content owners have picked up where the RIAA left off. Righthaven is among the most notorious. Since last year, Righthaven filed over 200 copyright infringement lawsuits against bloggers and website owners for posting newspaper articles without permission. Those hit with Righthaven lawsuits include former senate candidate Sharron Angle and the Democratic Party of Nevada. For a blow-by-blow account of the Righthaven lawsuits, read Steven Green’s stories, a Las Vegas Sun reporter who has written extensively about the lawsuits. Another content owner trying its hand at massive copyright infringement lawsuits is Third World Media, which has tried to sue 1,243 individuals who downloaded copies of the pornographic film, Tokyo Teens.

What These Cases Mean for Everyday Internet Users

The Righthaven lawsuits may provide more guidance on how far one can push fair use online. Most of the people sued by Righthaven who attempt to defend themselves rather than settle claim their use of the articles qualifies is a fair use. That argument worked in the case of a realtor who used only eight sentences of a thirty-sentence news article. However, most of the Righthaven defendants have copied an entire article. For them, it is more difficult to make a persuasive fair use argument.

Many have also criticized Righthaven for filing lawsuits without first issuing a DMCA takedown letter. While the majority of content owners would likely send a takedown letter prior to filing a lawsuit, there is no statutory requirement that they do so. Hence, it will be interesting to see how this “no warning” argument resonates with the courts.

Visual Artwork in Film and Television

On the Art Licensing Blog, artist Paul Brent tells the story of how his artwork made an appearance on this week’s episode of Hawaii Five-O.

In his interview with Tara Reed, Paul wonders whether video production companies must ask artists permission for the use of their artwork. The answer is yes! The Copyright Act protects visual artwork just as it protects songs, films, books, and other creative materials.

Production companies that use artwork in a production without the artist’s permission can certainly be sued for copyright infringement (if the use does not qualify as a fair use). One of the best known cases is contemporary artist Faith Ringgold who sued after a poster of her Church Picnic Story Quilt appeared as part of the set decoration in an episode of the sitcom Roc. Even though the poster appeared for a total of less than thirty seconds, the court said it wasn’t a fair use. The parties ultimately settled without a trial.

Is News-Reporting Via Twitter More Akin to a Haiku or a Bumper-Sticker?

No television cameras were allowed in the Connecticut murder trial of the men accused of killing the wife and daughters of Dr. William A. Petit, Jr. in Cheshire, Connecticut. Nevertheless, those unable to be present in the packed court room were able to stay completely updated on each trial development as it occurred.

That’s because at least half a dozen mainstream journalists tweeted the trial. One reporter referred to this method as “haiku journalism”. A commenter to a New York Times article on the topic, “A Grisly Murder Trial, in 140-Character Bits”, thought comparison to haiku was much too flattering and referred to this evolving news-reporting method as “bumper sticker journalism”.

Using Twitter for news reporting raises questions about voyeurism as reporters sent out all the grisly details of a horrific crime and the lack of editorial review for a news article sent out in tweets. I’ll add two legal questions to the debate over twitter as a journalism method.

Does Copyright Protect Tweeted News Articles?.

News articles are protected by copyright. Several newspapers have been battling to force bloggers, portals, and others to show proper respect for those copyrights in an online world.

Does news sent out via Twitter enjoy copyright protection? I would say yes. While a single 140-character tweet is likely too short to qualify for copyright protection, a stream of tweets that together comprise one coherent story should qualify for copyright protection.

A related question is how much control over that copyright does the reporter or news organization retain? When you post to Twitter, you retain ownership in your tweets. However, you give Twitter “a worldwide, non-exclusive, royalty-free license” to use the tweet in any way Twitter wants. That means Twitter can stream or share the tweeted news story with other online and offline outlets.

Does the Risk of Libel Increase for Tweeted Articles?.

The news stories most likely to be tweeted include those stories that are sensational and controversial. When reporters are tweeting the stories as fast as they can type and there is no editorial overview, twitter-journalism seems to introduce more opportunities for defamation claims as reporters, who are only human, get their facts wrong and “type without thinking”.