A federal appeals court in Boston has denied the claim that the photo on the right infringed the photo on the left. Harney v. Sony Pictures Television, Inc., United States Court of Appeals, First Circuit, January 7, 2013.
Photo District News explains to its photographer audience (hopefully not too busy suing each other), the protectable and non-protectable elements of the photograph”
“The appeals court said that Harney could not claim exclusive rights to the piggyback pose, the subjects’ clothing, the items they carried, or the church in the background with the bright blue sky behind it. But he could claim exclusive rights to the way he framed those elements, the placement of the subjects in the center of the frame, and the bright colors and shadows that make his image distinctive.”
Very, very, subjective stuff, n’est pas?
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“In the plaintiffs’ version, a dog embarks on a mission to save Christmas from a witch threatening to drain the world of holiday cheer with her magic icicle. In Disney’s version Santa Paws combats an evil icicle that threatens Christmas.”
[Source, TheWrap: "Judge Dismisses 'Santa Paws' Copyright Lawsuit Against Disney" 9/20/2012]
The precedent established here is that you cannot copyright the idea of a dog combating an evil icycle. One wonders, of course, what the outcome would have been if Disney had been the plaintiff, had produced its movie, and the plaintiffs here had come along and published their short story.
While I agree with the Court’s decision (federal trial court, Missouri), I rue the inherent ambiguities and unfairness of the laws and their litigated enforcement in our courts.
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The Australian High Court has refused to overturn a ruling holding Optus TV liable for copyright infringment for recording and showing from its cloud free over the air broadcasts of the Australian Football League.
From Google/YouTube to Apple/Samsung to Sydney, Australia, the new battles of copyright and intellectual property war are being waged by massive entities seeking to control the distribution of entertainment and ideas.
Although there are no pure or neutral judicial decisions based on law alone, the logic of the upheld appellate court decision seemed, at best, strained:
“The full bench of the Federal Court ruled that the 2004 exemption in the Copyright Act, which was designed to allow people to record TV broadcasts to watch later at a time more convenient, did not apply to the TV Now product, because Optus stood to gain commercially from it. And although the recording system was automated, Optus nonetheless had a role in “making” the recording.”
Some commentators worry about the effect that this decision may have on cloud storage services. I see the issue differently. The case has interest because the initial broadcasts were free, financed presumably by advertising revenue, and it is the time shifting prohibition that Professor Matthew Rimmer of the Australian National University sets out in the ZDNet article referenced here that is in play.
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[For background article, thanks to @artinfodotcom "Postal Disservice: Could a Sculptor's Fight for Royalties From a Postage Stamp Change Copyright Law?]
The United States Post Office paid sculptor Frank Gaylord $775,000 to create his stunning Korean War Veterans Memorial in Washington’s West Potomac Park. Another artist, photographer John Alli, took a photo of the Memorial covered in snow and licensed the photograph to the United States Postal Service for use on a postage stamp. He received $1,500.
The stamp made $30,000,000!
Windfall for the financially challenged Post Office. No, sorry.
Frank Gaylord sued the USPS for copyright infringement. A lower court limited Gaylord’s damage to the typical fee USPS pays, around $5,000. On appeal, the court reversed this limitation and held that Gaylord may be entitled to a 10 percent royalty ($3 Million?) based on his typical fee arrangements for licensed images of his work.
[click to continue…]
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So much for the free and open Internet. Remember back in March, when Yahoo sued Facebook for patent infringement, claiming ““Facebook’s entire social network model “is based on Yahoo!’s patented social networking technology.”
In response, Facebook in 1Q 2012 went out and purchased over $600 million in patents and filed a patent infringement counterclaim against Yahoo.
I wonder how many social media and other startups are subject to being crushed by these patent trolling giants? Will angels and venture capitalists require patent due dilligence?
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We think, of course, that Google has nailed the coffin shut on the Oracle copyright infringment claim with respect to its API:
“Computer programming languages are not copyrightable, and neither are Oracle’s APIs. Oracle accuses Google of infringement for doing what the Oracle API specifications describe. That is a classic attempt to improperly assert copyright over an idea rather than expression. The Court should hold that the structure, selection and organization of the APIs are uncopyrightable.”
In any event, for all clients and curious public readers, Judge Alsup does a wonderful job in these jury instructions in framing the issues.
Jury Procedure
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As the Authors Guild pursues here in New York its injunctive relief copyright case against the Hathitrust Orphan Works project, it sues, among others, Hathitrust, The Regents Of The University Of Michigan, The Regents of the University of California, The Board Of Regents Of The University Of Wisconsin System, The Trustees Of Indiana University, and Cornell Universit.
We turn our attention to the eloquent letter of Kevin Smith, Duke’s Scholarly Communication Officer to plaintiff author J.R. Salamanca, whose 1958 out of print novel appears to be on the verge of extinction. Mr. Smith writes:
“I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies. We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity. So let’s think for a minute about The Lost Country and what might be best for it and for you.”
Our friends at TechDirt are less diplomatic: Novelist Joins Lawsuit Against Libraries; Would Apparently Prefer His Book Rot In Obscurity.
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