Author: Sherrie Fields

Happy together under state not U.S. law?

Might there be a loop hole around the Copyright Act section 114 statutory license covering public performances of digital audio transmissions?  The Turtles think so and the Sixties rockers have brought a class-action lawsuit against Sirius XM, claiming the satellite radio station is playing their music without their permission, violating their sound recording rights. The Turtles’ infringement claims are based on California law, not federal copyright law.  That’s because their songs, including their hit Happy Together, were recorded before 1972 and Congress had not yet extended copyright to include protection for sound recordings.  The Sound Recording Amendment of 1971 extended federal copyright to sound recordings fixed on or after Feb. 15, 1972.  Recordings fixed before that date remain subject to state or common law copyright.  Recording artists rights further were extended with The Digital Performance Right in Sound Recordings Act of 1995, which acknowledges a performance right in digitally transmitted public performances as covered in sections 106, 112 and 114.  Section 114 of the Copyright Act requires statutory licenses for digital audio transmissions by satellite radio stations and web casters. The Turtles don’t have to bring their claim against Sirius under federal copyright laws, they contend, because in 1972 Congress hadn’t retroactively protected songs recorded before that time, meaning state laws govern. If so, potential causes of action could include misappropriation, as well as violation of state specific statutes...

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Copyright an issue for museums in cyberspace

As museums modernize and seek to offer more of a virtual experience for the public, copyright law will play an increasingly important part in curators’ lives. That was underscored by the Getty Museum’s recent announcement that it will offer free downloads of high-resolution images of 4,600 works in its collection — an action that brings to the forefront this question: Does making digital copies of art in the public domain create derivative works protected by copyright? No, says writer Michael Weinberg in this timely article. He argues that the Getty digital files aren’t automatically copyright protected. Museum collections, typically,...

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For comic artist’s heirs, a less than super appeal

Nope, there’s no superhero rescue to be found in court for the heirs of comic book artist Jack Kirby.  The U.S. Circuit Court of Appeals for the Second Circuit upheld a lower court decision in favor of Marvel, finding that his works at issue — such as Iron Man and the Hulk — were done for hire, meaning his heirs lack termination rights under section 304(c)(2) of the Copyright Act of 1976. In 1940, Kirby and Joe Simon created and sold the Captain America comic series to Marvel. In later years, under the legendary Stan Lee, Kirby helped to create other iconic characters of the genre, such as the Iron Man, Hulk, X-men, Fantastic Four and Thor — all properties that only have burgeoned in value with Hollywood’s current fixation on making blockbuster films based in comic books.  Both sides agree Kirby was a free-lancer, not a formal Marvel employee.  He was paid by check, at a per-page rate, for his drawings; he didn’t draw a fixed wage nor salary. Lee said that for many years, he and Kirby used the “Marvel Method” to develop comics, a system consisting of Lee meeting with the artist and providing a brief outline of an issue or idea; from that inspiration, the artists drew and Lee followed up  with dialogue and captions. While Lee said he “maintained the ability to edit and make changes...

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Video-art ruling’s a scream for Green Day

Scream as he might, a street artist whose work was used in giant video backdrop can’t prevail in his lawsuit against the rock band Green Day, the U.S. Court of Appeals for the Ninth District says.  The appellate judges in Pasadena ruled in favor of the band, affirming summary judgment by the district court in the lawsuit filed by artist Dereck Seltzer alleging violations of the Copyright Act and Lanham Act for the unauthorized use of his artwork. Richard Staub, a professional photographer and set designer, was hired to create the video backdrops for Green Day’s 2009-10 concert tour for their album 21th Century Breakdown.  For the song East Jesus Nowhere, Staub used a photo he shot of a Hollywood brick wall covered with graffiti and posters, including a weathered and torn copy of Scream Icon, created by Seltzer in 2003. Seltzer had taken his image of a screaming and contorted face and made it into posters and stickers. He sold and gave these away and many were plastered on walls in Los Angeles as street art. In his video, Staub modified his photograph of Scream Icon, adding a large, spray-painted red cross over the screaming face. His video was the backdrop for Green Day concert performances and their 2009 MTV performance.  Seltzer learned about and unsuccessfully tried to resolve use of his work. He then registered a copyright...

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In the 9th, football video games win 1, lose 1

In a pair of lawsuits filed by former athletes against gaming company Electronic Arts, let’s call the score tied, with appellate judgments recently decided in favor of each of the parties. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of former Arizona State quarterback Samuel Keller, rejecting EA’s motion to strike his right of publicity claims; the appellate court in Los Angeles,  in a second decision, sided with EA and upheld the dismissal of a lawsuit brought by Jim Brown, the National Football League Hall of Famer over the video game makers use of his character in its Madden NFL product. In the Keller decision, the court scrutinized the use of the plaintiff’s likeness as an Arizona State star in 2005 in EA’s 2005 edition of its NCAA Football video game. Keller said EA failed to pay him for incorporating him in its game and filed a class action lawsuit for violations of his right of publicity under California Civil Code § 3344 and California common law.  A district court denied EA’s motion to strike the complaint under California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. The appellate court rejected EA’s First Amendment and fair-use defenses.  EA had argued the lower court erred in ignoring transformative elements of the game as a whole, as required to prove both defenses.  The court also found EA’s...

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