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?
Thursday, July 7, 2011
Thursday, June 16, 2011
Lost in the Moment?
Super Bowl advertisements tend to be the most memorable ads of the year.
Last year, a Chrysler commercial prominently featured Detroit native Eminem and the background music was one of his hit songs, “Lose Yourself.”
Last month Eminem's publishing company, Eight Mile Style, filed a lawsuit in a German court for Audi’s use of the same song in a video similar to the Chrysler ad promoting the 2012 Audi A6 Avant.
Audi claims the video is not an advertisement and has not aired in the United States. According to Audi, the video was shown at a press event in Germany. The video has since been posted on YouTube and can be viewed here.
While the Audi video has not appeared on television or radio in the U.S., jurisdiction and infringement may be hard to establish for a copyright infringement action in the U.S. This is likely why Eight Mile has filed suit in Germany.
However, it poses an interesting question...if the YouTube video is available in the United States, could a copyright infringement action be brought in the United States?
Would Audi had to have authorized the copy of the video to be allowed to be posted on YouTube in order for a U.S. lawsuit to be brought? I do not believe a U.S. lawsuit will be filed but I will keep up to see what happens in the German action.
Last year, a Chrysler commercial prominently featured Detroit native Eminem and the background music was one of his hit songs, “Lose Yourself.”
Last month Eminem's publishing company, Eight Mile Style, filed a lawsuit in a German court for Audi’s use of the same song in a video similar to the Chrysler ad promoting the 2012 Audi A6 Avant.
Audi claims the video is not an advertisement and has not aired in the United States. According to Audi, the video was shown at a press event in Germany. The video has since been posted on YouTube and can be viewed here.
While the Audi video has not appeared on television or radio in the U.S., jurisdiction and infringement may be hard to establish for a copyright infringement action in the U.S. This is likely why Eight Mile has filed suit in Germany.
However, it poses an interesting question...if the YouTube video is available in the United States, could a copyright infringement action be brought in the United States?
Would Audi had to have authorized the copy of the video to be allowed to be posted on YouTube in order for a U.S. lawsuit to be brought? I do not believe a U.S. lawsuit will be filed but I will keep up to see what happens in the German action.
Friday, June 3, 2011
The Hangover 2: Did they go a tattoo far?
Last week brought good news for Hangover 2 fans -- the movie premiered over the weekend as scheduled, despite the copyright infringement lawsuit recently filed against Warner Brother Entertainment by tattoo artist S. Victor Whitmill (Complaint found here via Wired). Along with the lawsuit, Mr.Whitmill sought an injunction to prevent the release of the motion picture.
Mr. Whitmill is a tattoo artist located out of St. Louis, Missouri, whose most notable work is the design tattooed on the face of Mike Tyson. Whitmill obtained a copyright registration for a tattoo design for a tribal design on April 19, 2011.
Mike Tyson appears in The Hangover 2 but it is not the tattooed image on his face that Whitmill is seeking to enjoin but the replication on Ed Helms' character Stu.
I have not yet seen the movie, but in the trailer for The Hangover 2, it appears that Stu wakes up after a night of partying with a tribal tattoo similar in nature to the one that appears on Mike Tyson’s face. The tattoo is also featured in most of the print advertising for the film.
According to his complaint, Whitmill owns the rights to the image based on an agreement that was signed at the time Tyson obtained the tattoo. One of the terms of the agreement (a standard tattoo release form) is that the artwork belongs to the artist, not the person who recieves the tattoo. Whitmill alleges that as the owner of the copyright, he has exclusive rights to copy, distribute and publically display the tattoo. (Obviously, it would be difficult for Whitmill to try enforce any rights in the tattoo as it appears on Tyson’s face. One reason is because Tyson is the owner of the particular copy and has the right to display the work. Second, on some level there must be an implied license that the tattoo artist agreed to by placing his work on Tyson’s face. Otherwise, any photograph of Tyson could be considered an unlawful reproduction.)
In its Answer, Warner Brothers argued that there is no copyrightable expression in the tattoo as the design is not sufficiently original or creative, and that tattoos on skin are not copyrightable. Warner Brothers also hired David Nimmer to provide a declaration in support of the lack of copyrightablity.
Even if the Court does decide that Mr. Whitmill does indeed own the copyright to the tattoo, there are still a number of issues that will need to be decided any ruling on infringement can be made.
Mr. Whitmill is a tattoo artist located out of St. Louis, Missouri, whose most notable work is the design tattooed on the face of Mike Tyson. Whitmill obtained a copyright registration for a tattoo design for a tribal design on April 19, 2011.
Mike Tyson appears in The Hangover 2 but it is not the tattooed image on his face that Whitmill is seeking to enjoin but the replication on Ed Helms' character Stu.
I have not yet seen the movie, but in the trailer for The Hangover 2, it appears that Stu wakes up after a night of partying with a tribal tattoo similar in nature to the one that appears on Mike Tyson’s face. The tattoo is also featured in most of the print advertising for the film.
According to his complaint, Whitmill owns the rights to the image based on an agreement that was signed at the time Tyson obtained the tattoo. One of the terms of the agreement (a standard tattoo release form) is that the artwork belongs to the artist, not the person who recieves the tattoo. Whitmill alleges that as the owner of the copyright, he has exclusive rights to copy, distribute and publically display the tattoo. (Obviously, it would be difficult for Whitmill to try enforce any rights in the tattoo as it appears on Tyson’s face. One reason is because Tyson is the owner of the particular copy and has the right to display the work. Second, on some level there must be an implied license that the tattoo artist agreed to by placing his work on Tyson’s face. Otherwise, any photograph of Tyson could be considered an unlawful reproduction.)
In its Answer, Warner Brothers argued that there is no copyrightable expression in the tattoo as the design is not sufficiently original or creative, and that tattoos on skin are not copyrightable. Warner Brothers also hired David Nimmer to provide a declaration in support of the lack of copyrightablity.
Even if the Court does decide that Mr. Whitmill does indeed own the copyright to the tattoo, there are still a number of issues that will need to be decided any ruling on infringement can be made.
Friday, April 29, 2011
Copyright Class is in Session - YouTube Copyright School Part II
This is a follow up to my post of earlier this week which covered YouTube's reasoning behind creating their new Copyright School. This post addresses the content of YouTube's lesson.
While the cartoon has some serious information in it, there seems to be a level of Simpson-esque social criticism that many may not take the message seriously. I reserved some level of judgment on the YouTube Copyright School idea but this is a farce. I guess you cannot expect much from a company whose popularity has been based on posting of videos without the copyright owner’s authority.
This Copyright School video seems to be a significant acknowledgement that YouTube is a platform for copyright infringement. (Don’t get me wrong there are postings to YouTube that do not infringe on copyrights; however, its previous success was based on infringing works. The successes and number of views and hits for “It’s Friday” would not have developed without users flocking to the site to see clips from “The Daily Show,” “The Colbert Report,” or numerous other unauthorized postings protected by copyright.).
While YouTube seems to be evolving, more and more often YouTube seems much more like Napster. Knowing that YouTube plays some type of active role in screening its videos makes it worse. A copyright school video like this makes you wonder if YouTube should not have to view the Napster and Grokster decisions and be schooled on contributory and vicarious copyright infringement too.
While the cartoon has some serious information in it, there seems to be a level of Simpson-esque social criticism that many may not take the message seriously. I reserved some level of judgment on the YouTube Copyright School idea but this is a farce. I guess you cannot expect much from a company whose popularity has been based on posting of videos without the copyright owner’s authority.
This Copyright School video seems to be a significant acknowledgement that YouTube is a platform for copyright infringement. (Don’t get me wrong there are postings to YouTube that do not infringe on copyrights; however, its previous success was based on infringing works. The successes and number of views and hits for “It’s Friday” would not have developed without users flocking to the site to see clips from “The Daily Show,” “The Colbert Report,” or numerous other unauthorized postings protected by copyright.).
While YouTube seems to be evolving, more and more often YouTube seems much more like Napster. Knowing that YouTube plays some type of active role in screening its videos makes it worse. A copyright school video like this makes you wonder if YouTube should not have to view the Napster and Grokster decisions and be schooled on contributory and vicarious copyright infringement too.
Monday, April 25, 2011
Shoot First, Apologize Never, Then Offer a Pop Quiz With a Get Out of Jail Free Card
YouTube seems to be in a position similar to Baidu. Facing a potential appeal and negative campaign in terms of its copyright policy, YouTube is now turning its policy to making violators go back to school. (Yes, back to school.)
YouTube has a three strikes and you’re out policy regarding DMCA notices. Following the third strike, a user is suspended. (Circumventing this suspension can be as simple as opening a new account.) However, YouTube is now offering a new method to remove strikes – take a copyright class and pass a test. (YouTube insists that these users must then maintain a clean record.)
YouTube is also trying to self-regulate, pledging to build on its copyright policy including a 24 hour takedown policy, improving responses and system for DMCA takedown requests and improve its anti-piracy review.
A campaign by YouTube to show its improvements in assisting and taking seriously copyright complaints….is YouTube hedging its bets about its chances of reversal in the Viacom case? (Previous coverage of YouTube v. Viacom can be found here.)
Maybe the decision involving parent company Google in the book settlement case has YouTube a little more concerned. (That is a blog post for another day.)
There is an irony here. Clearly, YouTube knew that its site attracts copyright infringement. Viacom would argue that YouTube encouraged and profited from copyright infringement. Now, YouTube will be providing a course on copyright.
Now that YouTube is clearly the market leader in video content posting on the web and the website that most people would quickly go to first if looking for a video, YouTube seems to now want to not only clean up its image. A new startup for video web content would likely have to follow the YouTube model to allow significant amounts of infringing material to be posted to direct traffic to its site. Now YouTube can try the corporate responsibility routine and keep competitors at bay with all things – copyright.
YouTube, like Baidu maintains that the content that appears on its website is the uploader’s responsibility.
What effect do you think the school will have?
Is YouTube similar to Baidu trying to self-regulate fearing government intervention? Is it too late? Will the government step in? What happens (either way) in the Viacom case may determine if (or when) the government takes action?
Friday, April 15, 2011
Supreme Court Grants Cert in Another Copyright Case
The Supreme Court has become more active in taking copyright cases recently. The Court granted certiorari in Golan v. Holder which involves a question of whether the Uruguay Round Agreements Act (“URAA”) is constitutional.
The URAA allows for copyright protection for foreign works that were previously in the public domain. The district court in Colorado first found for the government but on remand the Tenth Circuit asked the district court to determine whether the URAA is content – based or content – neutral and found that the URAA violated the First Amendment. There were cross-appeals before the Tenth Circuit. Plaintiffs are artists who used foreign works that at the time were in the public domain and but the copyright in the original works were restored under URAA. Plaintiffs sought injunctive relief claiming the statute was invalid, force the government not to enforce actions for restored copyrights and the Register of Copyrights to cancel restored registrations. The government as Defendant appealed summary judgment for Plaintiffs and sought reversal on Defendant’s motion for summary judgment. The Tenth Circuit reversed finding the URAA does not violate the First Amendment.
What is the URAA?
As part of compliance with TRIPs (Agreement on Trade Related Aspects of Intellectual Property Rights) in 1994, the U.S. was required to provide copyright protection to foreign works where their term for protection had not expired. This was originally part of the Berne Convention (a multinational treaty which the United States joined in 1989); however the U.S. failed to enact a law to extend protection for foreign works.
The URAA restored copyright protection for foreign works which had fallen into the public domain because:
The parties stipulated that the URAA is content neutral and thus subject to intermediate and not strict scrutiny. Under intermediate scrutiny, the statute will not be unconstitutional if there is not substantial burden on speech to further the important government interests.
The appellate court sided with the government finding compliance with treaties, protecting U.S. copyright holders interest in foreign countries (as reciprocity may be granted with other treaty members) and restoring foreign authors rights in the United States to be important governmental interests.
Among the reasons cited by the court were its deference on foreign affairs issues to Congress and the President and economic arguments about the losses the U.S. authors would suffer because their works would fall into the public domain due to failure of the U.S. to agree to copyright relations with different countries (and recognize the rights of the foreign authors). Without the reciprocal protections offered under the URAA, American authors would not be provided with “restored” copyrights in other countries. Congress considered the effect on those who would be infringing “restored” copyrights.
The Court also found that the law was not overbroad and extending beyond the government interests. The court claims that the URAA does not interfere with the built in protections of the First Amendments in copyright law, such as fair use and the idea / expression dichotomy. (Although in this instance, there is an argument that the URAA does stifle free speech and its scope by removing works that were already in the public domain.)
The Tenth Circuit also rejected Plaintiffs’ arguments that the URAA is facially unconstitutional. Plaintiffs argued there should be a bright line about what is in the public domain. However, relying in part on Eldred v. Ashcroft, 537 U.S. 186 (2003) (the Supreme Court decision upholding the Sonny Bono Copyright Extension Act – allowing for copyright protection to be extended to the life of the author plus 70 years), the court found that Congress had the power to extend copyright to works in the public domain.
The court failed to address an important distinction between Eldred and the URAA. In Eldred, Congress was not removing any works from the public but merely extended protection for works that were currently protected. In Golan, Congress was removing works that were already in the public domain. Retroactivity that may pull works out of the public domain could be more problematic than the issue in Eldred.
Will the Supreme Court extend Congressional power to take works out of the public domain? This is a classic copyright case with constitutional implications that the Supreme Court could not pass up.
The URAA allows for copyright protection for foreign works that were previously in the public domain. The district court in Colorado first found for the government but on remand the Tenth Circuit asked the district court to determine whether the URAA is content – based or content – neutral and found that the URAA violated the First Amendment. There were cross-appeals before the Tenth Circuit. Plaintiffs are artists who used foreign works that at the time were in the public domain and but the copyright in the original works were restored under URAA. Plaintiffs sought injunctive relief claiming the statute was invalid, force the government not to enforce actions for restored copyrights and the Register of Copyrights to cancel restored registrations. The government as Defendant appealed summary judgment for Plaintiffs and sought reversal on Defendant’s motion for summary judgment. The Tenth Circuit reversed finding the URAA does not violate the First Amendment.
What is the URAA?
As part of compliance with TRIPs (Agreement on Trade Related Aspects of Intellectual Property Rights) in 1994, the U.S. was required to provide copyright protection to foreign works where their term for protection had not expired. This was originally part of the Berne Convention (a multinational treaty which the United States joined in 1989); however the U.S. failed to enact a law to extend protection for foreign works.
The URAA restored copyright protection for foreign works which had fallen into the public domain because:
- the work failed to comply with formalities (i.e. the failure to place a copyright notice on a work prior to 1989 (and the enactment of the Berne Convention) could subject the work to falling into the public domain)
- lack of subject matter protection
- lack of national eligibility
The parties stipulated that the URAA is content neutral and thus subject to intermediate and not strict scrutiny. Under intermediate scrutiny, the statute will not be unconstitutional if there is not substantial burden on speech to further the important government interests.
The appellate court sided with the government finding compliance with treaties, protecting U.S. copyright holders interest in foreign countries (as reciprocity may be granted with other treaty members) and restoring foreign authors rights in the United States to be important governmental interests.
Among the reasons cited by the court were its deference on foreign affairs issues to Congress and the President and economic arguments about the losses the U.S. authors would suffer because their works would fall into the public domain due to failure of the U.S. to agree to copyright relations with different countries (and recognize the rights of the foreign authors). Without the reciprocal protections offered under the URAA, American authors would not be provided with “restored” copyrights in other countries. Congress considered the effect on those who would be infringing “restored” copyrights.
The Court also found that the law was not overbroad and extending beyond the government interests. The court claims that the URAA does not interfere with the built in protections of the First Amendments in copyright law, such as fair use and the idea / expression dichotomy. (Although in this instance, there is an argument that the URAA does stifle free speech and its scope by removing works that were already in the public domain.)
The Tenth Circuit also rejected Plaintiffs’ arguments that the URAA is facially unconstitutional. Plaintiffs argued there should be a bright line about what is in the public domain. However, relying in part on Eldred v. Ashcroft, 537 U.S. 186 (2003) (the Supreme Court decision upholding the Sonny Bono Copyright Extension Act – allowing for copyright protection to be extended to the life of the author plus 70 years), the court found that Congress had the power to extend copyright to works in the public domain.
The court failed to address an important distinction between Eldred and the URAA. In Eldred, Congress was not removing any works from the public but merely extended protection for works that were currently protected. In Golan, Congress was removing works that were already in the public domain. Retroactivity that may pull works out of the public domain could be more problematic than the issue in Eldred.
Will the Supreme Court extend Congressional power to take works out of the public domain? This is a classic copyright case with constitutional implications that the Supreme Court could not pass up.
Thursday, April 7, 2011
White House Announces IP Enforcement Strategy
On March 15, 2011, the Administration issued its White Paper On Intellectual Property Enforcement Legislative Recommendations, which provides 20 legislative proposals and actions to be taken in connection with the goals set forth in the Joint Strategic Plan on Intellectual Property Enforcement. (You can see my previous coverage of the the Joint Strategic Plan here.)
Among the legislative recommendations:
Of note, is the continued concern regarding infringement for streaming video over the Internet as a felony. Following the UFC v. Justin.tv lawsuit, The Hurt Locker lawsuits, and ICE’s domain name seizures.
This issue was not the focus of the previous Joint Strategic Plan but has quickly become a priority.
Among the legislative recommendations:
- Stricter criminal penalties for copyright infringement
- Include specific language to provide for copyright infringement for streaming video over the Internet as a felony
- Allow for wiretaps by authorities for criminal copyright and trademark violations
- Allow Customs to work with intellectual property rights holders to provide pre-seizure information to determine whether products are infringing
- A series of statutes to provide greater protection against counterfeit pharmaceuticals;
- Allowing Customs to issue penalties for infringing exports and imports;
- Allow for relief for voluntary disclosure to Customs of unintentional acquisitions of infringing goods; and
- A right of public performance for sound recordings transmitted over broadcast radio.
Of note, is the continued concern regarding infringement for streaming video over the Internet as a felony. Following the UFC v. Justin.tv lawsuit, The Hurt Locker lawsuits, and ICE’s domain name seizures.
This issue was not the focus of the previous Joint Strategic Plan but has quickly become a priority.
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