Wednesday, July 27, 2011

Opting Out, Opting In - Google Books Settlement Update

Last week, a hearing was held in the Southern District of New York by Judge Chin for an update on progress on settlement in the Google Book Settlement.

However, there has been no progress. Previously, the judge had indicated that the settlement may clear antitrust hurdles if the default provision was that authors had to opt-in to the settlement to agree to make their works available through Google Books. This will also allow for snippets of the work available through a search mechanism on Google.

An attorney from Google indicated that there were business issues in addition to legal issues that were still being worked out.

Previously, the Court indicated that it was doubtful that a settlement would be reached. Id. Google does not have much interest in the opt-in provision. Id.

Without a settlement, the judge will likely have to decide whether the use of the snippets from books are a fair use for which Google can provide to users or whether these may be infringements of the literary works. Is it possible that this is what Google actually seeks?

Rather than pay a hefty settlement sum for an opt-in option that is not as attractive to Google, it may merely wait to see if its use of the published materials from authors is a fair use – for which Google may have to pay nothing at all.

The parties have until September 15, 2011 before the next report is due to the judge.

Friday, July 15, 2011


The YouTube viral music video sensation “Friday” featuring Rebecca Black is now the subject of a copyright dispute

Apparently, Ark Music, the company that produced the video, wanted to start charging $2.99 for viewing of the “Friday” video on YouTube.  No one told Rebecca Black.  Apparently Black only learned of this development by fans. 

Upon learning of the charges, Black’s lawyers sent a copyright takedown notice to YouTube for the video.  Black’s lawyers claim that Ark Music does not have the rights of publicity or right to advertise the video.  Black’s lawyers also claim that Ark Music has failed to provide the master recording of the song and that the company has no right to exploit the work (i.e. charge $2.99 on YouTube for the video). 

While the dispute is being decided, the video has been removed from YouTube

Is this one of those instances where a copyright takedown actually benefits the public.....will there be withdrawal without free access to the “Friday” video, and would anyone pay $2.99 to rent it?

Thursday, July 7, 2011

Hangover Lawsuit Update

Last month, Warner Bros. and S. Whitmill “amicably settled” the copyright dispute regarding the use of the tribal tattoo that appears on Mike Tyson’s face from being used on another character in The Hangover 2.  The details of the settlement were not disclosed.

Prior to reaching an agreement with Whitmill, Warner Brothers informed the Court that if it is unable to resolve the lawsuit involving the tribal tattoo on Ed Helms' character in The Hangover 2 (detailed in my previous post), that WB would take the step of altering the appearance of the tattoo on one of the character’s faces in the movie when it is released on DVD.  This apparently is an expensive alteration.  However, it may be less expensive than having to pay damages for infringement.  Obviously, if the reproduction of the tattoo were not longer to appear in the movie, then the claim for additional damages would be mitigated. 

An additional twist on this case is from David Nimmer who filed a declaration as an expert for Warner Brothers. The declaration can be seen in its entirety here.

Part of Nimmer’s argument is that the tattoo (and therefore, the copyrighted work) is not fixed in a tangible medium when the design was affixed to Tyson’s face.  There are several references to the history of the Copyright Act and failure to mention tattoos as part of the legislation.  But I think the analysis misses the overall structure and underlying purpose of the fixation of the work into a tangible medium.  Part of the purpose of the fixation was to ensure that the work was not fleeting.  While arguably, the tattoo may be able to be removed, it does nothing to change the analysis that the work is fixed.  The work was clearly capable of being drawn onto a piece of paper or a picture of the work as appeared on Tyson’s face would suffice to show how the work appeared.  It also raises a completely different question, because clearly Whitmill had to file a deposit of the copyright and could not have filed Mike Tyson’s face.  (I presume a photograph was submitted to the Copyright Office.)  Without getting into the merits of the level of protection that the tattoo should be provided under copyright law, it seems a rather flimsy argument to claim that the work is not fixed in tangible medium.  The photograph itself would show the tattoo artist’s rendering. 

The argument lacks credibility.  By analogy, if an artist drew sketches in pencil, would the drawing not be capable of copyright protection because the copyright registration indicated that the sketch was in pencil and was capable of being removed with an eraser?

Another argument pressed by WB and Nimmer is that there are no reported cases involving copyright infringement for tattoos.  (A case involving Rasheed Wallace was settled out of court – however, in that case, the tattoo involved was an actual tattoo on the person involved not a temporary reproduction on another person.)  There is a copyright infringement case involving temporary tattoos. See Gonzalez v. Kid Zone, Ltd., 2001 U.S. Dist. LEXIS 12008 (N.D. Ill. Aug. 14, 2001).

Because of the settlement we will have no way of knowing how the case would have turned out.  What do you think the Court would have decided?