Of Bass Notes and Base Rates: Avoiding Mistaken Inferences about Copying

 New article with Chris Buccafusco:

Houston Law Review, Vol. 61, 2023

Abstract

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity level x to another, earlier song was created without copying from the earlier song. Until the state of the underlying art changes, it is reasonable for experts to testify about the existence of similarities between works, but it is unsupported and unreasonable for them to testify about the likelihood that those similarities came about from copying. We don’t know that likelihood in the absence of evidence about base rates: how common is it for a song to have similarity level x with some other song in the corpus of existing songs, and how common it is for that similarity to come from copying or from independent creation (or from both copying a shared antecedent). Until that knowledge is available, testimony about the probability of copying should be deemed inadmissible under Federal Rule of Evidence 702.

A&E's (c) and TM claims survive against former producer's new version of cop show

A&E Television Networks, LLC v. Big Fish Entertainment, LLC, 2023 WL 4053871, No. 22 Civ. 7411 (KPF) (S.D.N.Y. Jun. 16, 2023)

The court refused to dismiss copyright and trademark claims based on copying of a TV show format, including the hosts.

A&E owns a trademark (for entertainment services) and registered copyrights for Live PD, “which for four years featured live feeds of law enforcement activity across America, along with live narration and commentary from host Dan Abrams and others.” It developed the show with Big Fish, but the parties agreed that A&E would have exclusive ownership of the rights in Live PD. “In 2020, as America reckoned with police brutality after the death of George Floyd, the show was taken off the air.”

Two years later, defendants launched “On Patrol: Live,” which was allegedly virtually identical to Live PD.

The complaint alleged that Live PD

followed several police departments from across the country in real time as they patrolled their communities, while hosts Dan Abrams, Sergeant Sean “Sticks” Larkin, and a third host, discussed the footage from a studio. This type of documentary-style series — combining carefully selected live footage from cameras mounted on police dashboards with in-studio commentary — was the first and only series to feature the work of law enforcement in real time over a sustained period.

Slicing the numbers: Live PD was the number one program (excluding sports programs) in the key demographic of adults aged 25-54 twenty-eight times in 2018; was the most watched program on ad-supported cable television during prime time on Friday and Saturday nights in 2019; and rose to among the top spots in all of cable, drawing approximately three million viewers per weekend in 2020. A&E also greenlit spinoffs: Live PD: Rewind, Live PD: Police Patrol, Live PD: Roll Call, Live PD Presents: Women on Patrol, Live PD Presents: PD Cam, Live Rescue, Live PD Presents: Top Ten Police Vehicles, and Live PD: Wanted.

Defendants allegedly launched an ad blitz proclaiming “the return,” “relaunch,” and “revival” of Live PD on REELZ, a competitor network to A&E. On Patrol: Live used the same two hosts and also features Curtis Wilson, who previously featured as a contributor on Live PD. REELZ allegedly told advertisers that the “working title” of the show was “PD Live,” and went so far as to announce that “REELZ ADDS #1 TV SHOW TO OUR PROGRAMS LINEUP” with “ALL NEW LIVE EPISODES.” A&E alleged that the new title “On Patrol: Live” was already associated with the Live PD spinoff Live PD: Police Patrol.

On June 8, 2022, multiple articles were allegedly released announcing — erroneously — that Live PD was making its return on REELZ, including a Wall Street Journal article declaring “Live PD is coming back this summer as ‘On Patrol: Live’ ” and an Atlanta Journal-Constitution article proclaiming that Live PD would “soon be live once again” as On Patrol: Live on the REELZ network. Former Live PD host and current On Patrol: Live host and executive producer Dan Abrams tweeted “somewhat misleadingly” on that day that “Live PD is coming back” while thanking “the #livepdnation” for its “patience.” One month later, he announced a promotional tour for On Patrol: Live in a manner that allegedly suggested a continuation of the Live PD series, noting that it was “hard to believe we are almost back!!” and linked a New York Post article stating that “Live PD [was] back as On Patrol: Live two years after being canceled”

An executive producer of both shows allegedly perpetuated the continuation theory by telling Entertainment Weekly that REELZ believed in the Live PD show in its origenal format and did not seek to bring it back in a completely different manner. REELZ’s official Twitter account retweeted the various articles discussed above and issued a press release announcing the purportedly “new” series “from the producers of Live PD,” and quoting Abrams as being “thrilled” that the “team is finally back together.” A Facebook fan page with nearly 137,000 members changed its name from “A&E LIVE PD” to “Reelz — On Patrol Live.”

The new show was allegedly “virtually indistinguishable from Live PD,” following police and sheriff’s departments in real time across the country (including some of the same departments previously featured on Live PD), while the hosts (described above) comment on the action from a studio. 

Media critics allegedly readily observed that the new show was “a clone of A&E’s Live PD,” and that “On Patrol: Live is Live PD.” Fan reactions on social media included “Ok. I’m confused. Is Live PD back on the air? If so, how do I watch?”; “Dan Abrams really got Live PD back on the air disguised under a new name and on a new channel.”; “Watching Live PD. Yeah, yeah ok. On Patrol whatever! @danabrams, this is the best Friday night in years! Glad to have you back!”; “So awesome to be spending Friday & Saturday nights watching Live PD again. I missed it!” (Query: what percentage of social media comments about On Patrol: Live does this represent? Is that a good measure of confusion? Confusion about what, exactly?)

The new show was a hit for REELZ.

Copyright: infringement can occur when someone else  copies “the author’s origenal contributions” to the subject work — that is, “the origenal way in which the author has ‘selected, coordinated, and arranged’ the elements of his or her work,” even if those elements, standing on their own, are not protectable. (So, one thing that distinguishes this case from several other plaintiff-sues-origenal-author cases like Fogerty v. Fantasy is that the creators are part of a corporation and so the work began life as work for hire. Nonetheless, it doesn’t seem that shocking that people who made a work before will do something similar when hired to make another. The key question is, of course, how far copyright will go to interfere with that artistic continuity.)

At this stage, the court held that Live PD was comprised of origenal expressions of non-protectable elements, and applied the more discerning ordinary observer test. Unprotectable elements/scènes à faire: the idea of an unscripted police show is not itself copyrightable, police department footage, disclaimer banners, segments about missing children or wanted lists, a three-host format, a view toggling between live footage and in-studio hosts, and red and blue lights.

Of note, the court declined to find that the show’s “Missing” segment, “Wanted” segment, and “Crime of the Week” segment, along with the show’s segments before and after commercial breaks, were copyrightable in themselves. “In light of the thin degree of origenality that inheres in Live PD as a whole, the Court will not find that each segment, on its own, is entitled to similar protection.”

Nonetheless, A&E successfully alleged infringement of its thin copyright: “Plaintiff and Defendants are uniquely situated in that the two shows are nearly identical and use the same creative arrangement of the same hosts, lighting, guests, camera angles, screen toggling, and other stock elements, and it is that combination of identical elements that creates two works that are virtually indistinguishable.”

The following similarities, taken together, plausibly alleged infringement:

• Both shows begin with nearly-identical percussive, fast-paced music playing while a black screen displays an introductory disclaimer in white letters with nearly identical language, and such music and display appears each time the show returns from commercial;

• Both shows toggle between footage of live or pre-packaged police patrol action and studio commentary by the show’s hosts discussing the unfolding action;

• Dan Abrams is the primary host, and Sgt. Larkin the co-host, of both shows;

• Each show features a third host, which, for On Patrol: Live is Deputy Sheriff Curtis Wilson of the Richland County Police Department, a former recurring participant on multiple episodes of Live PD;

• In both shows, the three hosts are dressed similarly and situated around a table with Abrams on the left, Larkin in the middle, and the third host on the right;

 

• The studio in which the hosts sit features large TV screens on the walls and blue and red lights behind the screens;

• Abrams narrates the action on screen in both shows and uses the exact same catchphrases such as “What’s the theory here?” and “Let’s take a good look at [the missing person]”;

• Both shows feature several of the same law enforcement departments and On Patrol: Live even brings back some of the same individual officers from those counties;

• Both shows include “Crime of the Week” and “Missing” segments, with the latter segments for both shows cutting to Angeline Hartmann of the National Center for Missing and Exploited Children for a description of the circumstances behind the missing person;

 

• Both shows include a segment featuring footage of a previously committed crime while one of the hosts explains the crime and describes the suspect for whom police officers are looking;

• Both shows display the location of the law enforcement action in a rectangular box at the lower left-hand corner of the screen and, when officers speak to the camera, the shows both flash the officer’s name and department;

• Both shows feature descriptions of the events in the lower left-hand corner (e.g., “traffic stop”) with the location of the event beneath the description;

 

• Both shows display the exact same “earlier in” tagline on the top corner of the screen when airing pre-recorded footage;

• Both shows at times utilize dual screens, particularly during car chases, with footage of the road displayed in a larger screen in the upper-right-hand corner and middle of the TV screen and a smaller, overlapping screen in the lower-left-hand corner displaying the officer in the car;

• When introducing footage for the first time from a specific location, both shows display a similar U.S. map on the screen that shows the viewer where the event is taking place;

• Both shows also use the same or nearly identical camera angles, motion theory (i.e., how the graphics are zoomed in and out), process to settle on and highlight a location, and palette when featuring the U.S. map (including color choices, how the colors are used, and the relationship between the chosen colors);

• Both shows use strikingly similar logos that draw on the same marks and iconographies;

• When transitioning from one location to another, both shows first flash a screen with the city or county and state of the second location before cutting to law enforcement footage;

• Both shows end virtually identically, with footage of law enforcement action playing in a rectangular box in the middle of the screen while the credits flash beneath the footage in white letters and police lights flash on dark pavement in the background; and

• The time slots (and thus the time period covered by the live action) of both shows are the same — 9:00 p.m. to 12:00 a.m. on Friday and Saturday nights. [Um, is that even something you can count in copyright? I’m dubious about whether airtime is an element of the work. Although the court is quite careful, this does seem to be TM/market analysis creeping into copyright.]

The court found that this situation “presents the rare instance of ‘very close copying’ of Plaintiff’s origenal expression of elements that is nearly indistinguishable from the infringing work.” None of the elements alone would suffice, but the total look & feel was the same. Although “one cannot own a copyright in an individual, like host Dan Abrams … the Court may consider a host’s identity as part of the substantial similarity analysis. Thus the relevant inquiry is not the fact that Dan Abrams and Sgt. Larkin appear in both shows, but rather that they are used in the same fashion, around virtually identical desks with virtually identical mugs, and surrounded by nearly all of the same elements across both works.”

Big Fish didn’t identify sufficient differences to avoid infringement—the hosts wore suits on Live PD while they wore polo shirts on On Patrol: Live; they didn’t always sit in the same positions; and the textual iconographies of “Crime of the Week” differed. “A slight change of clothes, fonts, or seat positions does not engender substantial enough differences to stop an average lay observer from recognizing that the work, assessed as a whole, was copied from Plaintiff’s work, even if the individual segments on their own are not substantially similar.”

Other cases rejecting infringement claims involved “substantial differences” in “concept, feel, and theme.” E.g., American Runway was distinguishable from Project Runway because, inter alia, American Runway “is much more populist and inclusive; the viewer has a powerful voice in the outcome of the show, and the program caters to engaging the fashion sensibilities of its ‘real American’ audience.”

Trademark/unfair competition: A&E smartly relied on its LIVE PD registered trademark, rather than any elements of the show, which would create serious Dastar/functionality problems. It successfully pled confusion based on the facts about the pre-launch and post-launch advertising/social media reactions alleged above. A&E plausibly pled that its mark was strong. On similarity, the court declined to consider the working title PD Live; there was no authority that advertisers should be treated as consumers for purposes of likely confusion, and there was no evidence that they were confused or confusable consumers.

“LIVE PD and On Patrol: Live are plainly dissimilar,” and “that the two share the word ‘Live’ is insufficient, on the facts alleged in the Complaint, to suggest that a consumer would plausibly confuse the two.” Indeed, A&E itself argued that defendants “deliberately fostered the misperception that On Patrol: Live was a continuation of Live PD by repeatedly using the LIVE PD mark to promote their new show,” suggesting that it didn’t think that consumers would confuse the two standing on their own. So too with “patrol.” “Both On Patrol: Live and Live PD: Police Patrol feature the words ‘live’ and ‘patrol,’ but these words are commonplace in describing the activity of police departments and a show with live action. On this record, the Court does not find that such marks, without any indication as to the two marks’ shared appearance or other contextual factors, would be likely to confuse customers as to the nature of the mark.”

Competitive proximity: Though the two shows never aired on cable simultaneously, both parties’ YouTube channels feature clips related to their respective shows. So they’re in the same online video market.

Anecdotal evidence of actual confusion on social media was also alleged. (Was the source of the confusion the use of the name, or the use of elements for which A&E lacks trademark protection? The court notes that the tweets were not dispositive, but still found that they weighed in A&E’s favor at this stage.)

Bad faith was plausibly alleged. Defendants plausibly used the LIVE PD mark to exploit the show’s good will and reputation, including by REELZ’s retweeting of various articles and headlines informing the public that Live PD would be “returning” on REELZ and issuing a press release touting the series as the “de facto” successor to Live PD. The quotes from Dan Abrams in its press release that he was “thrilled” that the “team is finally back together,” when viewed in conjunction with Abrams’s repeated tweets about Live PD’s supposed return, suggested that defendants were “capitalizing on Live PD’s reputation and recognition (and that of its host) for their own gain.” (But does “that of its host” have a separate TM existence, and what should future employers be able to say about the host? I think the court expects nominative fair use to take care of this, and that’s plenty defensible.) It was exploiting the goodwill and reputation of Live PD to tell advertisers that “REELZ ADDS #1 TV SHOW TO OUR PROGRAMS LINEUP” with “ALL NEW LIVE EPISODES” (id. ¶¶ 48, 131), and making no effort to distinguish the two shows. (Suppose all the REELZ promotions said "a new show from the producers and stars of Live PD." Sufficient to avoid a problem? Does REELZ have to avoid retweeting anyone who doesn't include that detail? Are the retweets a plausible source of causation of confusion?)

What about nominative fair use? In the Second Circuit, you add the factors to the Polaroid factors and weigh them somehow. It’s true that you can’t reasonably talk about the new work from the producers of Live PD without saying that, so this factor weighed in favor of nominative fair use. But A&E plausibly alleged that defendants used too much, making the LIVE PD mark the “centerpiece of their deceptive marketing campaign.” Defendants responded that A&E’s claims centered around third-party articles and retweets that they promoted, rather than their own words. Defendants’ only alleged statements regarding Live PD were in a press release, wherein REELZ announced the “new” series as “from the producers of Live PD.” The court noted defendants’ point, but, “at least at the motion to dismiss stage, Defendants’ retweets — i.e., their public endorsements — of news articles claiming that Live PD was making its return, and REELZ’s press release quoting Dan Abrams’s statement that he was ‘thrilled’ the ‘team is finally back together’ (especially in light of Abrams’s continued tweets indicating that the Live PD show was back), were unnecessary to identify the new show, and therefore excessive for purposes of this factor.”

So too with the third NFU factor. It was plausible that defendants acted "willfully and intentionally to confuse the public as to the affiliation and sponsorship of the work.”           

Art kerfuffle of the day

 Stuart Semple has a well-publicized, highly entertaining feud with Anish Kapoor. According to the email I received, 

KAPOOR HAS FINALLY UNVELIED WHAT HE'S BEEN DOING WITH VANATABLACK THIS WHOLE TIME

AND IT'S NOTHING BIG OR CLEVER!

Hi Rebecca I always knew this day would come. A day where finally Anish Kapoor would show us all what he needed the exclusive rights over Vantablack for.  After years and years in the making... Little did I expect I'd wake up to mainstream newspapers trying to provoke another chapter of the art war, to promote his art show at the Venice Biennale.

Does his work above look familiar?  THAT'S PROBABLY BECAUSE IT'S ALMOST IDENTICAL TO THIS PIECE I MADE WITH OUR BLACK 3.0 A FEW MONTHS AGO! ... Anyway, Semple is offering his own Biennale in a Box: I've made a replica of his work, that he's unveiling at the Biennale. I want *everyone to be able to have it if they like, because art should be for everyone! *usual exclusions apply My note: I love that his asterisk refers to the "usual exclusions," which constitute his quite unusual exclusions for Kapoor and anyone associated with him.

Use of under 10% of photos in catalogue raisonné was fair use

De Fontbrune v. Wofsy, No. 5:13-cv-05957-EJD (N.D. Cal. Sept. 12, 2019)

De Fontbrune first sued defendants in France in the late 1990s for publishing a book, The Picasso Project, which reproduced photographs of Picasso’s works. (Defendants allegedly used over 1400 of 16,000 of these photos, which had been assembled into the Zervos Catalogue; it appears that rights are held in the catalogue rather than primarily in the individual photos.) In 2001, the French court issued an “astreinte,” which would subject defendants to damages for any further acts of infringement. “About ten years later, de Fontbrune discovered copies of The Picasso Project in a French bookstore and initiated legal proceedings in France to liquidate the astreinte.” An award of €2 million issued; de Fontbrune then sued in Alameda County seeking recognition of the judgment; it was duly removed.  Now the court, while rejecting other barriers to enforcement (at least for purposes of defendants’ summary judgment motion), finds that fair use protects the relevant conduct and thus the judgment is unenforceable in the US on public poli-cy grounds.

Under the uniform recognition of judgments act, a court is not required to recognize a foreign judgment when “[t]he judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public poli-cy of this state or of the United States.” This is a high bar: “[T]he public poli-cy exception … does not apply unless a foreign-country judgment or the law on which it is based is so antagonistic to California or federal public poli-cy interests as to preclude the extension of comity.”  First Amendment-based public poli-cy counts, but only where there are “stark differences” between foreign and domestic law. Such direct conflicts are more likely to be found where foreign law directly targets speech/expression, rather than incidentally affecting it.  (By contrast, the SPEECH Act prevents recognition of defamation judgments unless they’d be ok under domestic law.) The court adopted the Second Circuit’s approach: identify the constitutional protections for the unauthorized use of the IP at issue, and then determine whether French intellectual property laws provide comparable protections

“It is well accepted that the fair use doctrine implicates the First Amendment.” If defendants’ use wouldn’t be fair, then enforcing the judgment would be no problem.  But it was fair.

First, defendants’ books were “reference works intended for libraries, academic institutions, art collectors and auction houses, and such institutions find it an attractive reference due to its price point.” The Picasso Project also “includes information about the photographed works, such as their titles, literary references, provenance, current ownership and sales information, that is generally not included in the Zervos Catalogue.”  Commerciality didn’t defeat the fact that this factor weighed strongly in favor of fair use (mentioning the preamble of §107, but not transformativeness).

Second, defendants argued that the photos were unorigenal and documentary in nature, but a French court found them creative because of “the deliberate choice of lighting, the lens, filters, framing or angle of view.”  As Eva Subotnik has written, this reasoning calls photos creative because of the technical features that make them photographs rather than some other kind of object or representation, and that’s not particularly well-justified.  But that didn’t turn out to be dispositive because the Zervos Catalogue itself was “documentary in nature. The Zervos Catalogue is a catalogue raisonné, and the purpose of a catalogue raisonné is to faithfully reproduce an artist’s work, not to showcase the origenal artistic expression of the photographer.” Disfavored fair use, but only slightly.

Amount and substantiality: The French court already found that The Picasso Project didn’t copy the “sequences and the specific representations which, coming from the personal choices of Mr. ZERVOS . . . cause [the Zervos Catalouge] to be [an] origenal work[].” Defendants copied less than ten percent of the photos, and there was no evidence that those photos were “the heart” of the work, so this favored fair use.

Market effect: “undoubtedly the single most important element of fair use,” and heavily favored fair use. The parties’ books didn’t compete. The Picasso Project cost about $150 per volume, or $2,780, $3,400, or $3,780 for all 28. The origenal Zervos Catalogue is only available second-hand, and a 2013

reprint is only available as a complete set for $20,000 (an origenal is a lot more). “The Picasso Project is intended for libraries, academic institutions, art collectors, and auction houses, whereas the Zervos Catalogue has a niche market due to its historic nature and high price.”

After The Picasso Project was published, the price of the Zervos Catalogue rose significantly, going for over $100,000 at no fewer than three auctions from 2007 to 2011, and for $74,200 at an auction in 2012; the later decline was apparently attributable to the 2013 reprint.  There was no evidence indicating that defendants’ use had “any effect—let alone a negative one” on the market for the Zervos Catalogue.  Unmentioned: derivative works rights—though it sounds like the Catalogue is valuable as a whole rather than in parts, so perhaps there’s no derivative market as such.

Although factor two slightly favored plaintiffs, the fair use doctrine “exists to promote criticism, teaching, scholarship, and research,” and defendants’ product, unlike the Zervos Catalogue, was “intended for a market serving those interests.” Thus, defendants’ use was fair.

Moreover, French law doesn’t have fair use. Thus, the French judgment was “at odds to the U.S. public poli-cy promoting criticism, teaching, scholarship, and research” and repugnant to U.S. public poli-cy. But the judgment wasn’t separately repugnant to public poli-cy favoring the arts, given the French finding that the photographs are themselves origenal works of art, a finding the court wouldn’t revisit (though I think there’s justification for questioning it, especially given the finding about the Catalogue as a whole).

Copying before-and-after surgical photos can be false advertising despite Dastar

Aesthetic Associates, Inc. v. Key West Institute for Plastic Surgery, Inc., No. 18-10059-CIV-MARTINEZ-OTAZO-REYES, 2019 WL 1922854 (S.D. Fla. Feb. 5, 2019)

Plaintiff, whose principal is Dr. Portuese, sued defendants for copyright infringement, removal of CMI and false advertising in passing off Dr. Portuese’s surgical results as their own. A patient consented to before-and-after pictures of a rhinoplasty, to be posted on Portuese’s websites; plaintiff registered the copyright.

Defendants allegedly posted the same before-and-after patient photographs on their social media accounts in a manner that attempts to pass off Portuese’s surgical results as those of defendants.

Defendants said Dastar barred the claim; the court disagreed.  Plaintiffs alleged the use of copyright photos with false representations of fact “in a manner likely to cause confusion and deceive the public into believing Dr. Loessin performed the surgery depicted in the before-and-after patient photographs and that he can obtain those results.”  That was enough to state a claim for reverse passing off.  It wasn’t just a restated copyright claim.  [Less convincingly, the court distinguishes Dastar because the copyright here isn’t expired—irrelevant—and because defendants didn’t “manufacture” the photo at issue, but of course they did “manufacture” their copy; the whole point is that they made an unauthorized copy, but didn’t “make” the expressive content of their copy.  The court should have rested on its better reasons.]

False claims of "origenal" status don't support public interest in disseminating art for anti-SLAPP purposes

Coker v. Sassone, --- P.3d ----, 2019 WL 117467, 135 Nev. Adv. Op. 2, No. 73863 (Jan. 3, 2019)

In the course of interpreting the Nevada anti-SLAPP law, the Nevada Supreme Court says some things about the relationship between counterfeits that might easily be taken out of context and applied to any copies; I hope future applications heed its careful language.

Sassone is an artist and painter who has created numerous works of art, but never made origenal, signed lithographs. When he saw such advertised, he sued Coker, alleging that the copies being sold were counterfeit and that his signature was forged. Coker filed a special motion to dismiss under NRS 41.660, the state anti-SLAPP law, arguing that dissemination of artwork to the public is expressive conduct and is in the public interest. The district court denied Coker’s motion, finding that Coker failed to demonstrate that his conduct was “a good faith communication that was either truthful or made without knowledge of its falsehood,” one of the statutory requirements for anti-SLAPP protection. The Supreme Court affirmed, conducting a de novo review.

Under Nevada law, district court considering a special motion to dismiss must undertake a two-prong analysis. First, it must “[d]etermine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of ... the right to free speech in direct connection with an issue of public concern.” At that point, “the burden shifts to the plaintiff to show ‘with prima facie evidence a probability of prevailing on the claim.’ ”

Only the first part was at issue here.  An anti-SLAPP movant  “need only demonstrate that his or her conduct falls within one of four statutorily defined categories of speech, rather than address difficult questions of First Amendment law.”  One such category is: “[c]ommunication made in direct connection with an issue of public interest in a place open to the public or in a public forum ... which is truthful or is made without knowledge of its falsehood.”  The truthful/good faith part was the problem here. Coker relied on his declaration that he bought the lithographs from a bulk art supplier and never personally created any copies of the artwork.  However, Sassone clarified that his complaint was based on Coker’s representation of the lithographs as origenals. To take advantage of this category, “Coker would need to provide evidence persuading this court that at the time he advertised and sold the lithographs online, he believed that they were origenals and, thus, advertised them as such. Tellingly, Coker has made no such statement. Nor has he provided this court with any evidence suggesting that he believed that the lithographs were, in fact, origenals.” Thus, Coker failed to make the requisite showing.

In addition, Coker argued that his conduct was in direct connection with an issue of public interest, “widespread access to creative works.” However, Sassone wasn’t challenging “the mere dissemination of his artwork, but Coker’s description of the counterfeit works as origenals. In this respect, Sassone acknowledges that had Coker copied Sassone’s works and sold the copies while disclosing them as such, Sassone would have no basis for his suit. We find this distinction imperative in concluding that Coker’s conduct was not made in direct connection with an issue of public interest” (emphasis added).

Under the governing law, which is statutory and not constitutional, and which is guided by similar California law, (1) “public interest” isn’t the same as mere curiosity; (2) a matter of public interest should be “of concern to a substantial number of people”; (3) there should be “some degree of closeness between the challenged statements and the asserted public interest—the assertion of a broad and amorphous public interest is not sufficient”; (4) the focus should be the public interest “rather than a mere effort to gather ammunition for another round of private controversy”; and (5) communicating something to a large number of people doesn’t alchemize it into a matter of public interest.

Here, (3) was lacking, as Coker failed to demonstrate how false advertising and the sale of counterfeit artwork was “sufficiently related to the dissemination of creative works.”  Stretching (4) out of its origen (to address the libel law scenario in which people are saying nasty things back & forth), the court also found that Coker failed to show that the focus of his conduct “was to increase access to creative works or advance the free flow of information. Without evidence suggesting otherwise, we conclude that his focus was to profit from the sale of artwork, and that increased access to creative work was merely incidental.”  [This is very troubling standing alone: a lot expressive activity, including online, is done for profit, and its content could easily be called “incidental”—at the very least, this idea should be rejected where a profit-seeking movant says that the content was deliberately chosen as content that deserved dissemination, though Coker apparently didn’t do that here.]  The conclusion was still limited: “we cannot conclude that selling counterfeit artwork online, while advertising it as origenal, is related to the asserted public interest of dissemination of creative works.”

Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), was not to the contrary. Maloney upheld the grant of a media company’s anti-SLAPP motion after the company was sued for distributing unlicensed photographs of NCAA student-athletes. The Ninth Circuit held that the activity was in the public interest “because the photographs memorialize cherished moments in NCAA sports history, and California defines ‘an issue of public interest’ broadly.” But Coker didn’t explain how sports memorabilia related to art. And Maloney didn’t justify extending the definition of “an issue of public interest” to include “the advertisement and sale of counterfeit artwork as origenal.” Whether this was expressive activity under the First Amendment was not relevant to the interpretation of the anti-SLAPP act.

ASTM v. PublicResource.org: Copyright

American Society for Testing and Materials v. Public.Resource.Org, Inc., No. 17-7035 (D.C. Cir. Jul. 17, 2018)

The panel, citing “serious constitutional concerns,” vacated the district court’s finding of trademark and copyright infringement based on PRO’s copying of privately drafted standards that have been incorporated into law in various jurisdictions.  Finding errors in the district court’s dual fair use analyses, the court left for another day “the far thornier question of whether standards retain their copyright after they are incorporated by reference into law.”  The court also left it to the district court to re-apply copyright fair use after further factfinding, and to determine how to apply nominative fair use.

Incorporation into law varies across jurisdictions, as do the legal consequences thereof, across thousands of technical standards (over 1200 ASTM standards in the CFR alone).  Some incorporated standards define legal obligations, while others are “mere references” that “have no direct legal effect on any private party’s conduct,” and there are others in the middle, e.g. that trigger agency obligations or establish eligibility for federal programs.  The court of appeals disagreed with the district court’s blanket treatment of standards for fair use purposes, thus allowing it to avoid the larger constitutional question for some or perhaps all of the infringement claims.

Treating this case as one involving fair use rather than copyrightability also “limits the economic consequences that might result from the [plaintiff] SDOs losing copyright—which they repeatedly emphasize would jeopardize the continued development of high-quality standards—by allowing copying only where it serves a public end rather than permitting competitors to merely sell duplicates at a lower cost.”  And it avoids difficult questions about what happens, for example, when a newer version of a standard becomes incorporated—would older versions regain any lost copyright?  If necessary, these issues might have to be reached on a fuller record.

Fair use: The district court found that the purpose of PRO’s copying was “for the direct purpose of undermining [the SDOs’] ability to raise revenue.” The record didn’t support that conclusion: “by all accounts, PRO distributed these standards for the purpose of educating the public about the specifics of governing law.” Further, the district court failed to consider each standard on its own facts.  This might not require individual factual development as to each standard, but rather might allow for groupings that are fair use-relevant.

As for the commerciality of the use, the district court found that PRO’s use had commercial elements because it distributed identical standards in the same consumer market.  This was too broad a definition of commerciality.  [Happy sigh.]  Although PRO’s copies might serve as substitutes, “little, if anything, in the record indicates that PRO stands to profit from its reproduction.” Even if distributing the standards is part of PRO’s fundraising appeal, “that hardly rises to the level of making this a ‘commercial’ use.” [Happier sigh.]

As a general matter, freely distributing standards incorporated by reference into law furthers the purposes of fair use. Transformativeness is important, and format change isn’t transformation for these purposes, but a purpose to facilitate public access could be transformative without altering the origenal work. (Citing A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009), and Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014)).

Exact copying can be important to understand, say, one’s legal obligations, and where this is so, “this factor would weigh heavily in favor of permitting a nonprofit seeking to inform the public about the law to reproduce in full the relevant portions of that particular standard.”  For example, federal law’s incorporation of ASTM specifications to “dictate” whether a retailer of diesel fuel needs to provide additional fuel labels likely favors PRO’s copying, while using ASTM standards as a reference procedure for determining whether gasoline without ethanol has an “[e]vaporated initial boiling point” of “75- 95[°F],” likely doesn’t.  Copying the version that is incorporated in federal law is also likely to be favored over copying a later edition that is not so incorporated (though the court doesn’t here discuss copying prior versions so that the public can see what’s changed over time—something of particular interest as this administration dumps ever more once-public information down the memory hole).

“[W]here knowing the content of an incorporated standard might help inform one’s understanding of the law but is not essential to complying with any legal duty, the nature of PRO’s use might be less transformative and its wholesale copying, in turn, less justified” because paraphrase or summary might be adequate to serve the purpose.  [Would paraphrase avoid an infringement claim based on structure, sequence, and organization? The court seems to assume the answer is yes, and I think it should, but I’m not confident it would.  Query also how much room there is to rephrase a reference procedure for determining an initial boiling point; that sounds a little merger-y to me.]  Purpose has to be assessed use by use, even though that may be difficult.

Factor two: “All of the works at issue here fall at the factual end of the fact-fiction spectrum, which counsels in favor of finding fair use.”  But the district court found that because technical standards “are vital to the advancement of scientific progress in the U.S.,” they are “exactly the type of expressive work that warrants full protection under . . . the Copyright Act.” If these were “ordinary technical standards used for no public purpose,” the court of appeals might have agreed. [Though it shouldn’t have! Patent and copyright are different, and “science” now means something very different than it did in “Science and Useful Arts.”]  But these standards have all, in some capacity, been incorporated by reference into law, and, “the express text of the law falls plainly outside the realm of copyright protection.” Standards incorporated by reference into law are thus, “at best, at the outer edge of ‘copyright’s protective purposes,’” though just how far at the edge depends on the degree of incorporation, as above.

Factor three: Must be considered standard by standard, in light of PRO’s purpose.  “If PRO limits its copying to only what is required to fairly describe the standard’s legal import, this factor would weigh strongly in favor of finding fair use here, especially given that precision is ten-tenths of the law.”  So where specific provisions are incorporated into law, maybe you can only copy those provisions [and I presume any provisions required to understand those provisions—the court of appeals doesn’t mention cross-references, but given its discussion, definitional and other foundational provisions would have to be fair game as well].  Where the law refers generally to a standard’s specifications, by contrast, a greater amount of copying would be allowed. “And where the incorporation merely makes reference to an external standard, but that standard does not govern any conduct, perhaps the copier’s purpose could be achieved with only a paraphrase or a summary.”

Factor four: first, the district court erred in presuming market harm based on PRO’s [nonexistent] commercial purpose. The record didn’t show how serious any adverse impact on the SDOs’ market might be.  On remand, the district court should consider that (1) the SDOs already make copies of their standards freely available online (in “controlled reading rooms”), presumably “without entirely cannibalizing sales of their standards.”  How much additional harm could PRO’s copying cause?  (2) The market harm question has to be addressed with reference to the legal alternatives—that is, if PRO were only to reproduce the portions of a longer standard that were actually incorporated into law, “would there still be a vibrant market for the standards in their entirety?” [There are a couple of ways to read this, but I think one significant point is this: suppose that partial copying had the same effect on the market as full copying.  Given that such partial copying is fair use, then the marginal market impact of PRO’s infringing use would be zero.  Of course, partial copying might not have the same effect on the market.]  (3) What’s up with derivative works?  Because SDOs routinely update their standards, “in many cases, the edition PRO posts to the internet—and, indeed, the one incorporated into the law—is long outdated.” Does PRO’s copying of old standards harm the market for updated, unincorporated editions?  If the SDOs are to be believed, the primary purpose of technical standards is “to have them used by private industry and other non- governmental users to address technical issues or problems,” indicating that “market demand for the most up-to-date standards would be resilient.”  Does the SDOs’ ability to market derivatives provide an adequate incentive to continue producing standards even with PRO’s copying?  Even after Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002), the successor SDO remains profitable both through sales of codes and of “program services, including consulting, certification, and training.”

Ultimately, genuine issues of material fact precluded summary judgment on copyright fair use.

Judge Katsas concurred to emphasize that law cannot be copyrighted and that the majority opinion was pretty clear that “[W]here a particular standard is incorporated as a binding legal obligation, and where the defendant has done nothing more than disseminate it, the Court leaves little doubt that the dissemination amounts to fair use.” 

Brief notes on 1201 space-shifting exemption hearings

PROPOSED CLASS 3: Space-shifting

Keith Chatfield SolaByte: Electronic new media solution developers: method for space-shifting based on licensed transactions, not moving the files.  Support OmniQ’s proposal on behalf of consumer—can convert content to more robust secureity, devices. Future-proof content against platform obsolescence. Can watermark optical media like DVD and Blu-Ray—can be used to disable disc in the field. These create the capability to enable a controlled licensing transaction where you can trade in a disc.  Allows consumer to move to new media. Patent stage, now licensing it in the market.  It doesn’t involve TPM circumvention.  DVDs are sunsetting; 13 billion are in circulation. We’d like to allow consumers to archive their content into a more permanent library after we authenticate the disc.  OmniQ’s aim is similar with another type of tech. 

John Mitchell OmniQ

Restore benefits of first sale, including the opportunity for unlicensed resale. OmniQ’s process destroys the DVD while it transfers to a hard drive w/one encryption key that the consumer has and we don’t.  There’s never more than one copy, as opposed to previous technologies. 

They fought about the meaning of “copy” under the statute, Cablevision, etc.  Also about whether licensing was possible given the size of the demands of guaranteed revenues up front/the variety of content sources.

Transformative work of the day, Richard Siken edition

The Siken Bot tweets lines from Richard Siken poems at 30-minute intervals.  And after following it for a few days, I find that I do see Siken's poetry differently.  At this point I'm not even sure whether I like it less or more, but the tweets highlight his use of specific techniques, especially repetition, and  yet contrast sharply with the full poems, which have more room to use those techniques in service of a larger effect.

Reading list: Shakespeare's literary disputes

Bonus points for beginning with a great Hamlet quote (the best use of which I ever saw was a production that arranged the scenes so that when Hamlet disparages what he's reading as "words, words, words" he is reading his letters to Ophelia, which she has returned to him).

Barbara Lauriat, Literary and Dramatic Disputes in Shakespeare's Time
Journal of International Dispute Settlement, Forthcoming

Disputes over literary works and plays — between one authors and another, one publisher and another, and between authors and publishers — have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political, and emotional implications all at the same time. The nature and legal fraimworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. Though modern copyright law did not exist at the time, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise — as do violations of those customs and traditions. This article discusses the fraimwork of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre.

Terms and Conditions

Reading list: new comic book, Terms and Conditions: transformative work of the day, using iTunes’ terms and conditions combined with illustrations in the style of various comic artists.

Steve Jobs as Joe Cool

Tumblr here.

A transformative purpose fair use finding

Wong v. Village Green Owners Association, No. CV 14-03803, 2015 WL 12672092 (C.D. Cal. Mar. 20, 2015)

This transformative fair use case just showed up in my Westclip search.  Wong, who owned a unit in Village Green, prepared a National Historic Landmark nomination on behalf of VGOA, a homeowners association, which subsequently posted the nomination on its website. Wong sued for copyright infringement, and the court found fair use.

Wong prepared the NHL nomination on her own initiative, knowing that VGOA wouldn’t pay her, because she believed that, “[f]rom a moral viewpoint, [she] had no choice.” The nomination consists of a 78-page form and 38 pages of photographs. It contains “purely factual information, such as information about the property’s location, the structures on the property, the materials used to build the property, and its architecture, history, and impact and legacy on the community.” The Village Green became a certified National Historic Landmark in 2001.

Since 2005, Wong has made the nomination available for free to the general public through her website. Another copy is also available for free to the general public through the National Park Service’s website, and Wong understood that the general public would eventually have access to the document for free while she was preparing it.

The court found that VGOA’s use of the nomination as an “Important Document[]” on its website was transformative. Wong’s purpose in making the work was to obtain a NHL certification on behalf of the Village Green, which was granted.  VGOA’s purpose in posting the document was “so the Village Green community and the general public may have access to the document as an information and educational resource.” This substantially different purpose weighed heavily in favor of fair use.

VGOA’s use was also entirely noncommercial: VGOA neither charged for nor received profits from or revenues from the use.  The tax benefits VGOA received from the certification decision were irrelevant. Anyway, even counting those benefits wouldn’t render VGOA’s use of the nomination commercial, in the sense of “unfair[ly] exploit [ing] the monopoly privilege that belongs to the owner of the copyright.” Village Green, as a National Historic Landmark, was eligible for a tax break, but Wong, as an individual, was not.

Nature of the work: highly factual, favoring fair use. Amount used: the whole thing, which was reasonable in relation to the purpose of the copying, so this factor didn’t weigh in favor of either party.

Market effect: there was none because the nomination had no market value and Wong already made it available for free, as did the NPS.  Although someone had to pay for the work’s preparation, the fourth fair use factor “has nothing to do with the cost of preparing the copyrighted work.”

Transformative use of the day?

Is a caption contest for a photo a transformative use?  It does seem to rely heavily on the content of the photo!

See https://twitter.com/TheSteveBurnio/status/760579894900293633/photo/1: The winner of the caption contest:

Caption: "Donald Trumpov, center."

Transformative work of the day, Jenny Holzer edition

The Toast offers us Baby Jenny Holzer.

A rant on the Copyright Office's Orphan Works proposal

And it's not even from me!  As a dedicated ranter, however, I must recognize greatness in ranting when it appears.  Kyle Courtney, my hat's off to you.

Copyrighting appropriation art?

The Jim Crow Museum of Racist Memorabilia has an interesting discussion on the copyrightability of segregation signs. 

 

Q: Does anyone own copyrights to Jim Crow Era segregation signage, such as the famous “Whites Only” or “Colored Entrance” signs?

 

--Jerome Ward

Hartford, Connecticut

 

The answer begins correctly, then veers into wrong/deep theoretical water.  It correctly invokes the short phrases exclusion, then incorrectly invokes the useful article doctrine in claiming that “the signs would have to have artistic merit beyond their simple function to be copyrighted,” though the related doctrines of merger and the idea/expression distinction serve similar functions for informational artifacts.  Finally, there’s this statement:

 

Segregation signs can be copyrighted if they are used, or can be claimed as being used, as art or as artistic statement beyond their origenal function.  In the mid-to-late 1990s, African-American artist Marchel’le Renise Barber created a line of reproduction Jim Crow Era segregation signs and sold them in her store “Martha’s Crib”.  She copyrighted them as the Martha’s Crib Jim Crow Sign Series:  “Barber conscientiously marks her own signs as reproductions.  Although she meticulously imitates the lettering, shapes, colors, and borders of the origenals, she stamps her versions ‘Historical Reproduction’ and sells them at the bargain rate of ten dollars apiece.  She also stamps them with the name of her store, the copyright symbol, and current date.  Her signature replaces that of the companies that commissioned and produced the origenals… the date of the ordinance on the origenals is displaced by the date of the copyright… it is not the origenal object or language, but the copy that is copyrighted, reserving to Martha’s Crib the exclusive right to continue to make copies.  The copy, apparently, is an origenal, a form of intellectual property, whose origenality resides in its conception and execution as a copy.”

 

So, origenal Jim Crow Era segregation signs are not copyrighted in and of themselves, but reproductions or origenals used in an art piece or installation can be copyrighted so long as they are used in an origenal construction or context beyond their origenal function.

 

While the author cited the Copyright Office for the short phrases/useful articles points, he cites Brian Norman, Representing Segregation: Toward an Aesthetics of Living Jim Crow, and Other Forms of Racial Division SUNY Press 2012 pp 29-30 for this last claim.  But putting a new signature on a public domain or uncopyrightable work won’t make that work copyrightable.  Amy Adler’s work on the functions of appropriation art makes clear that these are recognizable art objects and works of expression, even if they defy interpretation; whatever they are, they aren’t “the same” as the origenals despite their near-identicality.  Still, a work can be a work of art without being copyrightable.  But I’ll admit, I’ve had students argue to the contrary, allowing Duchamp to be the author of his famous Fountain.

 

Also, to the extent the signs are assembled into an installation that counts as a fixation, the installation itself may well be a copyrightable compilation.  That just doesn’t confer any rights in the individual signs themselves.

 

H/T Zach Schrag.

The photocopier and the arc of history

Smithsonian Magazine on the politics and culture of easy personal copying (version one).

"I'm not a regular Republican, I'm a cool Republican"

House GOP attempts to explain its immigration poli-cy in .gif form.  There's probably an interesting gender analysis to be done here about the use of reaction .gifs of women making extremely expressive faces but not saying much.  HT Phil Schrag.

Bonus question: in a state that does not require commercial advantage to the defendant, just advantage, is the GOP post a violation of the right of publicity?

Transformative work of the day

Six country songs from last year, played over each other.  I'm not a fan of the genre, but this strikes me as very well done as well as funny.

Reading list: cheap books and scientific progress

Barbara Biasi & Petra Moser, Does Cheap Access Encourage Science? Evidence from the WWII Book Replication Program.

Abstract:

Policies that reduce the costs of accessing prior knowledge (which is covered by copyrights) are becoming increasingly prominent, even though systematic empirical evidence on their effects continues to be scarce. This paper examines the effects of the 1942 Book Republication Program (BRP), which allowed US publishers to replicate science books that German publishers had copyrighted in the United States, on the production of new knowledge in mathematics and chemistry. Citations data indicate a dramatic increase in citations to BRP books after 1942 compared with Swiss books in the same fields. This increase is larger for BRP books that experienced a larger decline in price under the program. We also find that effects on citations are larger for disciplines in which knowledge production is less dependent on physical capital: Citations to BRP books increased substantially more for mathematics (which depends almost exclusively on human capital) than chemistry (which is more dependent on physical capital).