copyright in TV productions and films

For TV productions and films, copyright may exist on a number of its components, for example, the original screenplay, the music score and so on. If you produced the TV show or film then you would normally obtain the rights to, or gain permission to use, the works required to make the production.

You will not infringe the copyright in a broadcast if you make a recording of a TV programme in your own home to watch later. For any other use you may need the permission for the rights holder, unless copyright exceptionsapply.

Broadcasts, which may be transmitted by cable or wireless means, including satellite broadcasts, but excluding most transmissions on the internet, afford copyright protection in addition to any copyright in the content of broadcasts such as films, music and literary material.

Films do not have to be original but they will not be new copyright works if they have been copied from existing films. Broadcasts do not have to be original, but there will be no copyright, if, or to the extent that, they infringe copyright in another broadcast.

ref:

http://www.ipo.gov.uk/types/copy/c-applies/c-tvfilm.htm

Piracy could put film industry out of business, warns group

Illegal downloads of popular films are nearly as numerous as box office visits, a French antipiracy association claims. The Association Against Audiovisual Piracy (ALPA) analyzed P2P traffic in France between November 2007 and June 2008 and concluded that a number of popular films had been downloaded so many times that the phenomenon could endanger the entire film industry.

ALPA monitored 100 of the most popular films (both French and foreign) on P2P networks during this time period and found that these films represented some 90 percent of all P2P downloads. The association says that there was a daily average of 450,000 downloads (in December, it was 536,000 per day), and a monthly average of over 14 million downloads.

For example, ALPA told the AFP that French film Bienvenue chez les Ch’tis averaged 9,800 downloads per day after its box office release in March, and it has been downloaded 682,000 times so far. That's a lot of downloads, but compared to the 20 million box office tickets the film has sold in France, we would hesitate to say that the box office is going to be closing down anytime soon.

Still, ALPA apparently believes that the evidence is strong enough to warrant some pretty strong language. "We are facing a major phenomenon that can endanger the film industry and audiovisual industries. We did not expect such figures," ALPA director Frederic Delacroix told the AFP.

He added that the association believes these numbers are just the beginning, as ALPA only examined the most popular films and not the industry as a whole. "The piracy of films requires urgent measures," he added.

Delacroix noted that a proposed anti-filesharing plan could be one solution to the problem. The plan, backed by French president Nicolas Sarkozy, would have repeat offenders lose their Internet connections (known as the "three-strikes" rule) and would require ISPs to strictly monitor their networks for copyright infringement. The total cost of Internet service may also rise, as ISPs will apparently have to spend time and money enforcing copyright on their networks with expensive deep packet inspection (DPI) gear.

Subscribers detected illicitly sharing or downloading copyrighted material will receive warnings. If the behavior continues, then Internet access would be guillotined. Most of this will be carried out by a government-funded independent authority overseen by a judge.

ALPA's full report won't be publicly available until September, but as Variety has pointed out, parts of it were leaked over the Internet this week without ALPA's permission. Ironic, that.

ref:

http://arstechnica.com/tech-policy/news/2008/08/piracy-could-put-film-industry-out-of-business-warns-group.ars

Copyright & Originality

Derivative Works & Copyright

The year 2000 the Turner Prize stirred up controversy over the legal definition of originality. One of the four shortlisted artists Glenn Brown entered a piece called ‘Love of Shepherds 2000’ which looked very similar to the cover of a book which had been illustrated by Anthony Roberts, Double Star by Robert A Heinlein (1974).

The artist, Glenn Brown had trained at Goldsmiths College London and was known for using other artists’ works as a starting point for his own. The 2000 case was the second one which had been brought against him. The first case saw him being sued by the estate of Salvador Dali who believed that he had copied one of Dali’s original works without making it sufficiently his own.

Copyright law in the UK uses an originality test is to judge that a work is not significantly derived from another original work. This does not refer to the amount of the original work which is reproduced but the quality of the difference. The key examples of reproductions which are not deemed as original are photocopies or photographs of original works as the new image is simply made up of someone else’s work. When an artist uses another medium however, such as paint or sculpture to reproduce an original work, the question arises that as the artist is creating something using skill and labour, does this mean that their new work is original?

The test is carried out by someone who is not an expert in the art world like a member of the public. The two images are placed side by side, and the person needs to judge whether there is a visual connection between the pieces. If they judge that there is in fact a visual connection, the new work will fail the originality test. These means that not only will the new work not qualify for copyright protection, it will also be an infringement of the original work.

To members of the public who were not trained in the arts, Brown’s image was a clear copy of Roberts’ original work. Many art experts however disagreed and deemed that it was aesthetically original. The law however works in favour of visual originality which needs to be obvious enough that members of the public can see it as well as experts.

Artists have been using other artists work as starting points for their own for many centuries and in many cases, if put up to the originality test, many great works would be likely to fail. Andy Warhol for example, created reproductions of famous photographs of icons such as Elvis Presley and Marilyn Monroe which were visually very similar to the original works.

The artist Le Corbusier commented that ‘All artists steal; but the truly original artist repays a thousandfold’ which goes some way in describing how the art world judges originality. An artist may steal ideas but as long as what is created goes on to lead to artists being inspired by their new idea, the original theft may be forgiven. The law however sees this differently and thus rulings which are made may not always please the art world.

The Brown case was settled out of court with an agreement that Brown would add ‘After Anthony Roberts’ to the title and copyright of his piece.

Common Copyright Problems Encountered by Architects

 There are a number of fairly commonly arising situations involving infringement of architects’ rights in their drawings or in buildings they have designed.  I will go through the most commonly arising situations in turn:

The Use of Plans Without Consent

 It is not uncommon for plans to be produced for the purpose of obtaining planning permission but for the client then not to buy the site.  Can the purchaser of the site with the benefit of planning permission freely make use of the plans?  The answer to this question is almost certainly no.  If the new owner of the site wishes to build in accordance with those plans he must first invariably copy the plans, which is itself an infringement of the copyright in those plans and he will then build a building in accordance with those plans.  The building of the building constitutes reproduction of the drawings in a material form and itself constitutes an infringement of copyright. 

 A second commonly encountered problem is where plans have been produced for company A, who then sells the site with planning permission to company B.  Company B then builds a building in accordance with the plans, although company B was not the company responsible for commissioning the plans.  The question arises as to whether company B is entitled to do this.  This will depend entirely on the agreement between company A and the firm of architects.  If the architects have been retained to produce drawings for the purposes of obtaining planning permission then the use of those plans to build the building will infringe the architects’ copyright.  All that company A had was a licence under the architects’ copyright for the purposes of obtaining planning permission.  Company A cannot therefore pass on to company B any greater licence than company A was granted. 

 A variation on this situation is where an architect is retained to produce drawings both for the grant of planning permission and for subsequent buildings.  Company A then sells the site (or maybe his business) to company B.  If company A has not paid the architect in full for the work which he has carried out then the question arises as to whether company B has a licence to use those plans to construct a building. 

If only part of an architect’s fees have been paid does the client (or a purchaser of the site) continue to enjoy a licence to use the plans?  The answer should be found in the architect’s appointment.  If not, terms may be implied into this contract.  Case law indicates that in the absence of express terms the client will still have a licence to use the plans, even if he has not paid in full.  In practice the difference between suing for copyright infringement and suing for unpaid fees is unlikely to be significant.  Copyright infringement damages are generally assessed on the basis of the fee that would have been payable.  The only advantage of suing for copyright infringement is that additional damages may be recoverable.

ref:

http://www.crippslink.com/index.php?option=com_content&view=article&id=124:how-architects-can-avoid-copyright-litigation&catid=20:technology-law-publications&Itemid=509

Deep Linking: Everyone Does It, but Is It Legal?

By now, users of the World Wide Web are very familiar with the common practice of “deep linking,” which involves providing a link on one website to a specific page or content on another website by bypassing the other website’s home page or main page. Despite the ubiquity of this practice, however, there is still some controversy over its universal legality, as illustrated by two recently filed cases: GateHouse Media v. New York Times Company, and Jones Day v. BlockShopper LLC.

Pending until just recently in the federal district court in Massachusetts was the widely followed case of GateHouse Media v. New York Times Company. GateHouse, which operates hundreds of newspapers and associated websites, sued the New York Times last December for copyright and trademark infringement, among other claims, based on deep linking to news articles and headlines on GateHouse websites by the New York Times-owned Boston.com’s “Your Town” website, which collects content related to local geographic areas in New England. Although the parties in GateHouse recently settled their case, issues regarding the legality of deep linking continue to swirl. Another case that is currently pending in Illinois federal district court is Jones Day v. BlockShopper LLC. In that case, Jones Day, an international law firm, sued BlockShopper, an online real estate news service, for deep linking to the biographies of several Jones Day attorneys in conjunction with a report on real estate purchases with which the attorneys were associated. Jones Day claims, among other things, that BlockShopper infringed and diluted the firm’s service mark, violated trademark and unfair competition laws, and created the false impression of the firm’s affiliation with the BlockShopper website by linking to the biographies and pictures of Jones Day attorneys. BlockShopper moved to dismiss Jones Day’s complaint, and the court denied the motion.

Certainly, to users of the Internet, deep linking provides a valuable benefit and greatly increases ease of use. However, as these new cases point out, some view deep linking as a detriment, arguing that a deep link might bypass advertising or marketing on the linked site or confuse the user as to the origin of the content being linked.

Whether good or bad, a majority of courts have agreed that merely linking to another website (whether in the form of a simple link to another website’s homepage or a deep link to a specific page on another website) does not constitute copyright infringement. For instance, in the 2000 case of Ticketmaster v. Tickets.com, a California federal district court stated that “hyperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.” The court in Ticketmaster also held that linking was legal so long as it was clear to whom the linked pages belonged. In the court’s opinion, a URL link is simply an address, not unlike a building address, that allows a user to reach a destination; nothing about it is original such that it would be copyrightable. The 2004 case of Online Policy Group v. Diebold, Inc., another California federal district case, agreed: “Hyperlinking per se does not constitute direct copyright infringement because there is no copying.” Courts have also agreed that linking is unlikely to create confusion in the marketplace or dilution of a mark to support federal trademark claims. The use of another’s name in a link, as opposed to a logo, simply helps a user find information at the linked location; it does not imply affiliation, endorsement, or sponsorship by the linked site of the linking site. See, e.g., Ticketmaster Corp. v. Tickets.com, Inc.

Deep linking remains ubiquitous and, under current case law, is still allowable in most circumstances. But GateHouse and Jones Day raise significant questions about the future of deep linking in all circumstances. Practitioners should therefore stay apprised of developing case law and advise clients making use of deep linking to review their web linking practices and give careful consideration to just how close to the edge of the law their website might be.

ref:

http://www.informationintersection.com/2010/05/deep-linking-everyone-does-it-but-is-it-legal/

Protecting Copyrights on Facebook Photos

Facebook is a great place to share your Facebook photos with others. But, one of the biggest concerns photographers have with sharing their work on social media websites is copyright protection. Fortunately, Facebook is very transparent about what rights you have when you upload content. The Statement of Rights is easy to find and is written in English that is simple to understand.
View Your Statement of Rights
Log in to your account and scroll to the bottom of your homepage. There are several links here. Click on the one that says 'Terms'. You will then be brought to the page that hosts your Statement of Rights.
Understand Your Rights
The statement was last updated December 21, 2009. Since this article is about protecting the copyright of your photos, the concern is with section 2, which states:
"You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings."
This means that by uploading content to Facebook, you are not transferring ownership. You own the content and can control who uses it. The next concern is in the next subsection on the page that states:
"For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."
By granting them a non-exclusive, royalty free world wide license, you are allowing them to host your content without paying you. You can also upload the photos on any other website you like. You are sharing your work with the world through Facebook. This social media network is a great place to build exposure amongst people in your network. Just be aware that a million people could be drawn to your content and Facebook won't pay you for driving that traffic to the page. Your license with Facebook ends when you either delete the content you've uploaded or delete your account entirely.
Other things that Facebook would like you to keep in mind is that even though you delete content, it may still exist on a back up hard drive of the network for a short period of time. The privacy setting of 'everyone' means that anyone on the web can view the page outside of the Facebook network and third party applications have access to your information and content.
The application agreements are a little hazy because each application is different. However, anything you post to Facebook you still own. Even though anyone could right click your image to steal it your copyrights are protected on Facebook and you are not giving up any rights as the owner of your work by uploading it to Facebook.
ref:
http://www.steves-digicams.com/knowledge-center/how-tos/online-sharing-social-networking/protecting-copyrights-on-facebook-photos.html#b

“Copyright and ISPs”: Viewpoint by Jay Rosenthal, Esq., Senior Vice President & General Counsel, NMPA (National Music Publishers’ Association)

As the seemingly endless music related copyright public policy debates continue, attention is focusing more on the need for an increased Interactive Service Providers (ISPs) role.  Many stakeholders and observers believe the key to a more robust global commercial music environment is for ISPs to become more pro-active in copyright enforcement and commercial matters.  Three topics, in particular, seem to touch on this new ISP focus:

Graduated Response Programs:    France is the first European country to pass a comprehensive graduated response law.  While there has been criticism in general leveled at those in the copyright community promoting this form of behavior modification, graduated response has been generally accepted as a common sense approach offering the right balance of ISP involvement, government involvement, and user sanctions.

Nevertheless, as with all programs of this type involving government collaboration with private industry, and more importantly those involving notices sent to the public, certain procedural glitches sometimes  lead to some temporary public push-back.  Notwithstanding, France should be able to adequately address the procedural concerns raised by critics of their program.

In the UK, the Digital Economy Act contemplates adoption of a more benign GRP approach.  The bill is still working its way through the courts, and certain political realities – e.g., the recently released, purportedly anti-copyright Hargreaves Report – may prove to be significant impediments to implementation of a robust program.

A key question is whether GRPs should be imposed on the industry by government (the French law) or adopted by the industry through voluntary arrangements with music industry stakeholders (as the recording industry in the US is exploring).  Certainly, a negotiated voluntary program would impose more intermediary and less draconian enforcement and behavior modification measures, which could include limiting the speed or other capacity of the service to the user, preventing use of the service to gain access to infringing material, and suspending the subscriber’s service for a relatively short period of time.  Even with these more benign approaches, proponents of a GRP will still have to address other political concerns like net neutrality.

ISP Tariff:  U2 manager Paul McGuinness has been the most high profile proponent of an ISP tariff, but others have also discussed the idea of imposing an ISP tariff on subscribers that would, in this age of rampant piracy, help offset the financial damage to creators and copyright owners.  Most assuredly, this would have to be implemented on a voluntary basis by any ISP.

Voluntary Copyright Enforcement Measures:   ISPs have claimed in the past that technological impediments have prevented them from engaging in proactive forms of policing their services for infringing material.  New technological advances in filtering, however, make the ISP arguments on this point less compelling.  In the future, ISPs should, arguably, incorporate the most advanced form of filtering or other technical enforcement measures available.

These points, and others, will most assuredly push the debate about how, and to what extent, the ISPs will play a role in the future digital music landscape.

*Jay Rosenthal is Senior Vice President and General Counsel at the National Music Publishers’ Association.  The views expressed in this commentary are not the views of the NMPA.  They are solely the views of the writer.

ref:

http://www.copyrightsummit.com/2011/06/01/copyright-and-isps-viewpoint-by-jay-rosenthal-esq-senior-vice-president-general-counsel-nmpa-national-music-publishers-association/