"Blurred Lines" is clear infringement

Am I the only one in the world who thinks the Blurred Lines judgment is right? From the Internet, it sure seems that way.

Robin Thicke and Pharrell Williams broke into jail here. From a litigator's perspective I have no hesitation in saying they are reaping what they sowed. "Blurred Lines" ended up in court when Pharrell and Thicke sued the estate of Marvin Gaye for a declaratory judgment, which is where you ask a judge to say "this thing you claim isn't true". And from a copyright lawyer's perspective I say this is a judgment that shows you can create a derivative work of something without actually incorporating that work.

And that principle is nothing new.

Quick thoughts on the Aereo judgment, more to come

I'll give a more full post imminently, but my initial thoughts

1. The majority opinion is policy, not law. It's telling that they never once reference the prior precedent, Cablevision, except to note that it was the prior precedent. That means they're not giving any meaningful guidance, which is what you do when you're trying to reach a targeted result.
2. Justice Scalia is 100% right: the Court's ruling replaces widely-accepted rules for service-provider liability with an improvised standard of "looks like cable TV".
3. There is no reason to limit this reasoning to cable TV. Although the Court takes great pains to say it's not ruling on cloud computing or any other technology, I'm not talking about technology. I'm talking about a method of legal reasoning. If "looks like cable TV therefore is regulated like cable TV" is the test for determining the scope and ambit of a law, then why stop with cable TV? "Uber looks like a taxi therefore it should be regulated like a taxi and be forced to get medallions.". "Food trucks look like a restaurant therefore they should be regulated like a restaurant and be forced to provide restrooms."

Like I said, more to come, but especially #3 concerns me.

SOURCES:
Aereo judgment http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

From 12 Years a Slave to collective agreements: one possible explanation for the script controversy

On the weekend, 12 Years a Slave won the Academy Award for Best Adapted Screenplay as well as Best Picture. There has been some controversy around the authorship of the screenplay. Apparently Steve McQueen believed at one point that he should have received a writer credit, John Ridley disagreed, and so Ridley ended up with the credit and therefore the award.

These kinds of things usually don't happen. The Writers' Guild of America has literally over 50 pages in its Collective Bargaining Agreement setting out the criteria for assigning credit and, if there's a dispute between writers, the arbitration method for settling it. So why didn't that happen here?

Believe it or not, the answer may be found in labor law.

Three points to help you avoid infringing when using popular source material

Every year, new versions of classic tales reappear in popular culture. Sherlock Holmes showed up in both movies and television. 2013's breakout surprise hit TV show was based on Washington Irving's "The Legend of Sleepy Hollow". And since the stories and characters upon which these hits are based are often themselves in the public domain, you might be tempted to create your own retellings of these tales too.

You can, but you need to be careful.

In a prior post on the character of Sherlock Holmes I made two important points about using pre-existing characters:

1. Where there are portions of a character in the public domain and portions that aren't, it's permitted to fork the characters to use only the public domain elements.
2. Forking characters in this way doesn't infringe on the rights of a copyright holder who might own non-public-domain elements to those characters.

But what may not be clear is how you can take a public-domain character and make them your own creation such that no one else can use your version of them, and in contrast when you're making too close use of someone else's version of the characters. A recent judgment from Canada gives us 3 good rules to help you make that decision.

The Apple e-books litigation post #1: why did it happen at all?

Although the Apple e-books judgment is a few months old, its consequences haven't yet begun to be fully understood. Tthis judgment starts to rebalance the playing field away from bottlenecks and distributors and toward individual content creators in several fundamental ways.

To understand the significance of the judgment, it's necessary to know what it does (and doesn't) say. And it's 160 pages, so bear with me because I'll have to break this into several parts...

Three not-so-elementary tips for using pre-existing characters, my dear author...

Being the start of a new year, January 1 (yesterday) saw a whole new set of works come into the public domain. And as that happens, some authors may want to use their characters for their own purposes. But if those characters are used in multiple works and not all of them are available, you might think you can't. Certainly the rightsholders for the later works will want you to think so. Are they right? A recent judgment on Sherlock Holmes gives some insight into this far-from-elementary question.

In its response to the Plaintiffs' amended complaint, Harlequin has nothing new to say

I've had a copy of the Harlequin response to the Plaintiffs' amended complaint in their motion for a class action in the e-books litigation, and I haven't been able to motivate myself to write about it for one simple reason: they had nothing new to say.

I've only found one item that even bears mentioning, and even that one can be dealt with quickly.

Harlequin plaintiffs bring new allegations, improve their case

[NOTE TO READERS: It's been a while since I've posted. Thanks for coming back.]

On November 2, 2012, the authors(*) in the Harlequin class action upped their game against Harlequin. If they're wrong, they will lose their class certification request. But if they win, they will find themselves making a point that will have repercussions far beyond just e-publishing and authors.

How does the HathiTrust book-scanning judgment affect e-books and audiobooks?

Scanning copyrighted works and making them searchable on the Internet sounds to many authors like it shouldn't be legal. But on October 10, a Federal Court in New York released a judgment holding that may be. That judgment raises significant issues for authors, publishers, and consumers, giving new scope to fair use of copyrighted materials in the USA.

"Is this the worst paragraph in your publishing agreement?"

The Passive Voice, a blog I follow that has tons of information for authors, has a really important post today entitled "Is this the worst paragraph in your publishing agreement?"

The advice in here is good for not just authors. App developers and film/TV producers should know about it too.

Three reasons Harlequin shouldn't get to have the e-books litigation dismissed

On October 19, Harlequin filed a motion seeking to have the e-books litigation dismissed. They make a lot of interesting arguments. Their lawyers are earning their money. But ultimately these arguments collapse onto themselves. This motion should lose.

Why is it so hard to stop patent trolls?

In the right hands, patents are good for inventors and for society. The monopoly they give allows for companies to do R&D work and commercialize that work, creating things that are a net gain for all of us.

The problem is, there are also companies out there that never make anything. They just see an issue, think about what kinds of things might somehow be related that issue, and then file patents based just on the description of how something should work rather than on something they've actually done. They never manufacture anything using that patent. They never even have any intention of doing it. Their definition of "doing business" with their patent is to find people who they think are doing something similar to the things described in their patent, contact them, and offer to license or even sell the patent. Meanwhile the companies that license or buy the patent just keep doing what they were doing, making things to try to help the world.

I have, of course, just described startup pharmaceutical companies.

Three reasons the ex-Register of Copyrights doesn't like change (and one reason he's wrong)

"[Aereo] appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision"

Designed by a copyright lawyer... He says that like it's bad!

Okay, maybe I'm kidding. And some background may be helpful.

Ralph Oman, the retired Register of Copyrights (the person who runs the office that handles copyright registrations), has filed a brief in the ongoing Aereo litigation. Aereo, as you may know, is a service that uses thousands of little antennas to capture over-the-air TV broadcasts and stream them. One stream per subscriber. Why not have one big antenna? Well, that takes some explaining too.

Penguin sues authors to recover advances

On Tuesday, Penguin decided it was finished with the book publishing business.

That's the only way I can interpret recent litigation developments from Penguin, which decided to sue a group of authors to recover advances paid for books that were never published.

The list of authors as reported includes some pretty significant names, such as Elizabeth Wurtzel, author of "Prozac Nation", and Ana Maria Cox, ex-editor in chief of the Wonkette political blog.

I've previously written a series of posts on book publishing (links below) and whether a publisher can sue authors to recover an advance is actually pretty well-traveled ground. The rules are pretty clear:

• If the author fails to deliver an acceptable manuscript the publisher can get the money back.
• If the publisher decides not to publish for other reasons even though the manuscript was acceptable the publisher can't get the money back.

(I'm trying to get a copy of the Complaint because I also can't figure out how Penguin can sue all of these same people, who would appear to have nothing in common with each other, in one lawsuit. For technical reasons that's usually not possible.)

But put aside the legalities for a second and let's just focus on the craziness. Any time a publisher pays an author an advance, the publisher is taking a risk. In one view, a publisher paying an advance is basically making the following bets:

• This person will be able to produce a manuscript that we will want to publish.
• The advance we will pay (using a calculation similar to the one I've set out in a previous post) will not exceed the amount of money we should have paid.
• If the advance does exceed the amount of money we should have paid, it's still worth it to have this person for other reasons (e.g. we become popular with authors).

Focus on that last bullet for a second. Paying good advances makes a publisher popular with authors. The more popular a publisher is with authors, the more other authors want to publish with them. So question: why would any publisher risk its reputation with the author community? Especially, as Elizabeth Wurtzel pointed out when contacted by Above the Law for comment on this litigation, when the amounts at issue are relatively small?

It just doesn't seem to make any sense.

I'll be back with more updates in the coming days and weeks, no doubt.

(Thanks to Nate Hoffelder of The Digital Reader for the tip)

LINKS:
Legal Minimum posts on book publishing including: publishers rejecting manuscripts, whether authors have to give back advances, etc.
http://bit.ly/LjV4MC
Legal Minimum post on calculating royalties and determining the right advance:
http://bit.ly/Nwz9F3
The Digital Reader (follow this!):
www.the-digital-reader.com
Smoking Gun article about Penguin lawsuit:
http://www.thesmokinggun.com/buster/penguin-group/book-publisher-sues-over-advances-657390
Above The Law article including responses from Elizabeth Wurtzel and analysis:
http://abovethelaw.com/2012/09/lawsuit-of-the-day-penguin-v-wurtzel-and-other-authors/

By settling in Europe, did Apple and the e-book publishers admit liability in the USA?

I've written a fair bit about the Apple e-books litigation, but I've focused on the US mostly. But that's not been the only place they've been called to the carpet. The EU Competition Commission had its own concerns and launched its own inquiry.

On September 19, Apple and 4 e-book publishers reached a settlement to resolve the EU issues. Similarly to the USA, the EU has opened the proposal up to public comments. And the terms of that proposed settlement are telling for what will happen in the USA as well, for one very important reason:

Siri: is this lawsuit too clever by half? Maybe, but maybe not.

"Siri: Tell me whether you're in sales."

That may be a question that no one with an iPhone 4S has ever asked. But for at least one plaintiff in San Francisco, it's a question that Siri should answer honestly.

Author's "Carnival of Souls" mark takes reviewers on a not-so-fun, and unnecessary, ride

I've spent some time this afternoon reviewing the Complaint in Jazan Ward's claim against HarperCollins over the Carnival of Souls and Enter the Carnival trademarks. And although I'm not sure he'll succeed, it's by no means the craziest thing I've ever seen. As for his complaints against the bloggers, there I'm not so convinced, and it's quite possible he may wish he had never tried anything.

For those of you who don't know what I'm talking about, an author of graphic novels named Jazan Ward has brought a claim against HarperCollins claiming that HarperCollins' new series of novels called Carnival of Souls infringes a trademark he has registered in those same words. Using various legal theories he wants to have HarperCollins change the name of the series and pay him damages for infringing his mark. Recently Ward has also started to send cease and desist (C&D) letters to various book bloggers and other reviewers telling them that they can't review the Carnival of Souls books because by doing so they're promoting a property that infringes his mark.

This claim may sound like it's crazy. It's not. At least not necessarily. And in fact, there's one particular part of the lawsuit that should be very interesting to small developers or indie authors who may find themselves up against a big media enterprise. But going after the reviewers is a different story.

A fresh analogy for file-sharing: the tomato

Sometimes a cigar is just a cigar, but sometimes a tomato is a piece of music. Did that make any sense? After reading the article linked below, it just might. And even though I think the analogy doesn't work perfectly, it leads to some very interesting perspectives on digital downloads and content creation.

The instructive comparison in the article is this: people say that digital content is a totally new type of thing because it can be reproduced forever without depriving the original owner of the original item. (The technical name for this type of copying is "lossless".) But that's not true. There's another type of thing that can be copied forever in a lossless fashion.

One simple reason I've ignored the paid reviews scandal

Reputation is an idle and most false imposition; oft got without merit, and lost without deserving.

(Othello, Act II, Scene 3)

Shakespeare could make an entire tragedy out of what happens when you're so focused on your reputation that you lose sight of what's really important. It seems that at least some authors may have fallen for the same trap, buying their way to a good name without earning it.

If you've been living in a cave for the past couple of weeks you may not know what I'm talking about. I'll explain.

Judgment in the Apple e-books settlement: DOJ 1, Publishers 0

On September 5, 2012, Judge Denise Cote entered an order approving the settlement between the DOJ and 3 of the 5 publishers in the Apple e-books litigation: Hachette, Simon & Schuster, and HarperCollins. And on every count, it was a clear win for the DOJ. Maybe not just for today.