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Short Samplings of Songs May Not Be Considered Copyright Infringement After All

The Ninth Circuit Court of Appeals just decided that song sampling without permission does not necessarily infringe the copyright. Many artists have built careers by sampling an old song to create a new work. Until now, courts have told the artist to “get a license or do not sample.”

The Sixth Circuit Court of Appeals decided in 2005 that there is no de minimus exception to sampling. The de minimus exception, which applies to the copyright law generally, states that if an artist borrowed an insignificant portion of an existing work, the artist did not infringe. The Sixth Circuit held that this exception did not apply to sampling. This meant that if an artist sampled a portion of a song that lasted a fraction of a second, the artist nonetheless infringed.

Now, the Ninth Circuit in VMG Salsoul, LLC v Madonna Ciccone (“Salsoul”)took “the unusual step of creating a circuit split” and decided that thede minimus exception does apply to sampling. In Salsoul, Madonna sampled a 0.23-second “horn blast” from a disco song and incorporated the blast into her 1990 song “Vogue.” The Ninth Circuit explained that Madonna did not infringe because “a reasonable juror could not conclude that the average audience would recognize the appropriation of the horn sound.” Therefore, her sampling was de minimus and did not infringe.

This Ninth Circuit decision will impact the music world and likely lead to a U.S. Supreme Court decision that clarifies the legal limits of unauthorized sampling.

ARTICLE BY Todd A. Davidovits of Polsinelli PC
© Polsinelli PC, Polsinelli LLP in California

Supreme Court Cert: Laches (in Patent Cases) and Copyrightable Subject Matter to Be Reviewed

Laches

The Supreme Court of the United States granted certiorari to review a patent case on the law of laches. SCA Hygiene Products v. First Quality Baby Products, Case No. 15-927 (Supr. Ct., May 2, 2016).

In its cert petition, SCA argued that the en banc decision of the US Court of Appeals for the Federal Circuit conflicts with the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer (IP Update, Vol. 17, No. 5) that, under the Copyright Act, laches cannot bar damages claims brought within a statutory limitations period, even though the initial violation may have occurred years earlier. SCA also argued that the Federal Circuit observes a presumption in favor of laches that is inconsistent with Supreme Court precedent.

The question presented is: Can the defense of laches bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period (35 USC § 286), and if so, to what extent?

In SCA, the Federal Circuit granted en banc review to determine if the Supreme Court’s Petrella decision required a change to the law of laches in patent cases (IP Update, Vol. 18, No. 10). In a 6–5 decision, the Federal Circuit held that in terms of patent infringement actions, Petrella did not require a change in the laches rule set out by the court in 1992 in A.C. Aukerman v. R.L. Chaides Constr. Rather, the en banc Court explained that notwithstanding the provisions of § 286, Congress codified the laches defense in § 282 when it included an unenforceability defense in that statute. Thus, the Court found that laches could bar a damages claim even for acts occurring within the six-year period of § 286.

The Federal Circuit also held, however, that Petrella requires a change in the Aukerman rule that only pre-suit damages may be barred by laches. The Court explained that the availability of injunctive relief or ongoing royalties now depends on an analysis of the circumstances of the delay under the Supreme Court’s 2006 decision in eBay, Inc. v. MercExchange (IP Update, Vol. 9, No. 5).

Copyrightable Subject Matter

The Supreme Court also granted certiorari in a copyright case arising from the US Court of Appeals for the Sixth Circuit and presenting the issue of copyrightability of cheerleader uniforms. Star Athletica, L.L.C. v. Varsity Brands, Inc., Case No. 15-866 (Supr. Ct., May 2, 2016).

The question presented is: What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?

In Star, a split panel of the Sixth Circuit held that the arrangement of colors, stripes, chevrons, zigzags and other designs on a cheerleading uniform are copyrightable, separate from utilitarian aspects of the uniform itself (IP Update, Vol. 18, No. 9). The Court rejected the argument that the pictorial, graphic or sculptural features are simply performing a decorative function (which is itself a “utilitarian aspect of an article”) and are therefore not separable from the utilitarian aspects of the cheerleading uniform. The dissent argued that the case turned on how “function” is defined (i.e., in terms of the decorations in issue), which would determine whether the designs were copyrightable.

Article By Paul Devinsky of McDermott Will & Emery

Google Tries “Pretty Woman” Tactic in Oracle Copyright Suit

I’m not sure Julia Roberts’ use of that blonde wig and eighties cut-out dress when she Google versus Oracle leaned against Richard Gere’s car in Pretty Woman should be considered “fair use,” but perhaps a court might say otherwise. How does Julia’s transformation from wayward to womanly in that iconic 1990 film come into play in a fight between tech giants Google and Oracle over the use of copyrighted java? Because they both hinge on “transformative use.”

Google’s going to trial again? Say it isn’t so. I have to wonder how many lawyers Google, alone, employs. But, if you’re going to stand as one of the front-runners in today’s fast-paced, internet-driven services market, you have to be prepared for lawsuits. Google has been fending off some serious claims by Oracle in a copyright suit filed in San Francisco since 2010, but when the focus of the debate turned to expert witness testimony, we wanted to highlight the matter for discussion and debate. Oracle initially sued Google claiming improper use of copyrighted Java, particularly Google’s use of its application programming interfaces (“APIs”) on its Android platform, to allow developers who are familiar with Java to quickly convert their web apps to Android. Oracle is now reportedly seeking royalty damages in excess of $8 billion.

Initially Google argued, and the trial court agreed, that APIs were not subject to copyright. That ruling, however, was overturned by the Federal Circuit on appeal, which means Google’s remaining defense is whether its use of the APIs was “transformative,” which would make it acceptable under the Fair Use Doctrine. What standard of “transformative use” are the parties looking to? 2 Live Crew and their ripping parody of “Pretty Woman” in their 1989 album, “As Clean As They Wanna Be.” Please tell me you’re envisioning that iconic cover right now. Apparently the Supreme Court in a 1994 ruling, Campbell v. Acuff-Rose Music, Inc., found 2 Live Crew’s version of “Pretty Woman” so creative and original that it qualified as “fair use,” not copyright infringement. Oracle is arguing the opposite by claiming Google’s use of the Java APIs did nothing to transform the code. Google simply plugged it into to a larger body of work, but in no way altered it, which does not qualify, according to Oracle, as transformative.

Oracle has sought to exclude the testimony of Google’s computer science expert from opining that Google’s use of the Java code altered it sufficiently to qualify as a transformative use, claiming his opinion “flies in the face” of the Federal Circuit’s finding that Google was wrong in claiming its use was transformative simply because it incorporated other elements in the Android system. Google has fought back, stating the Federal Circuit never decided whether the work was transformative and specifically remanded the case so that issue could be decided by a jury. Are you finding both of those arguments a bit rambling and repetitive? Apparently so did the trial court judge when he lamented his role as the gatekeeper who has to “excise every detail of expert testimony on a granular level.” With reams of lawyers on either side fighting over every detail and every dollar, however, that is probably precisely what he will have to do.

If you feel it may be hard, not being a computer science guru, to make a determination as to whether Google’s use of the Java at issue was “transformative,” imagine how the jury is going to feel. In May, 2012, a jury found Google had infringed Oracle’s copyrights but they could not decide whether use of the code in question was “fair.” This will be the second trial and second jury that attempts to answer this question. It will require an expert with exceptional communication skills, who is as persuasive as Julia, to effectively break this Java jumble down and win over the potentially tech-savvy, but stubborn “Richards” in the jury box. That’s the expert we would find for them, anyway, if Google gave us a call.

ARTICLE BY Annie Dike of IMS ExpertServices

Copyright Suit Alleges Huckabee Campaign Lacks "Eye of the Tiger"

Mike Huckabee’s poor performance in the Iowa caucuses – leading to his subsequent withdrawal from the race – isn’t his only concern lately. Huckabee’s presidential campaign organization faces a lawsuit for playing Survivor’s “Eye of the Tiger” without permission during a rally for Kentucky County Clerk Kim Davis, who was released from jail for contempt of court stemming from her refusal to issue marriage certificates to same-sex couples in the wake of the Supreme Court’s landmark ruling. (See Rude Music, Inc. v. Huckabee for President, Inc., No. 15-10396 (N.D. Ill. filed Nov. 18, 2015)). The plaintiff, Rude Music, Inc., owned by Survivor’s guitarist Frank M. Sullivan III, and the publisher of the musical composition, filed a copyright infringement action against Huckabee for President, Inc. in November of 2015. According to the complaint, as Huckabee led Davis from the detention center, a clip from Survivor’s Grammy-winning song “Eye of the Tiger” was used for dramatic effect. Rude Music alleged that this public performance infringed its copyright, and is seeking an injunction barring future unauthorized performances and monetary damages.

Made famous in Rocky III and regularly blasted from stadium speakers to stoke up the home team and the crowd, “Eye of the Tiger” was a number one hit on the Billboard Hot 100 Chart for six weeks in 1982 and features a catchy melody with lyrics that inspire listeners to prepare for life’s battles. In the movie, the song plays over dramatic scenes of Rocky battling opponents in the boxing ring before his triumphant match against Clubber Lang. Not to be outdone, Huckabee’s rally for Mrs. Davis attempted to use these same themes to paint a virtuous battle between a defiant state court clerk versus the federal government.

Like trash talk at a pre-fight weigh-in, Sullivan was quick to respond to the rally on his Facebook page: “NO! We did not grant Kim Davis any rights to use ‘My Tune — The Eye Of The Tiger. I would not grant her the rights to use Charmin!”….” After the suit was filed, Mike Huckabee responded, calling the lawsuit “very vindictive” and renewed his support for Mrs. Davis’s position. Unsurprisingly, Sullivan expressed his opposing view and went on to state that he does not “like mixing rock and roll with politics; they do not go hand in hand.”

In his Answer to Rude Music’s complaint, Huckabee asserted several affirmative defenses to the infringement claim, including fair use (arguing that his alleged use of a one-minute clip of the song during a noncommercial and religious rally should constitute fair use). Interestingly, Huckabee also counterpuched that the rally for Kim Davis was not a campaign event at all, rather a religious assembly within the meaning of Section 110(3) of the Copyright Act. Certain provisions of the Copyright Act (17 U.S.C. § 110(3)) create an exemption to copyright requirements for the “performance of a nondramatic literary or musical work or of a dramatic-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.” Huckabee claims that because “Eye of the Tiger” isn’t incorporated or performed in musical theater, it is a nondramatic musical work for purposes of the Copyright Act. Therefore, because he considers the Davis rally to be a “religious assembly,” the alleged improper use of the song does not constitute infringement under the Copyright Act.

Apparently “Eye of the Tiger” is a popular tune along the campaign trail, as this isn’t the first time that Rude Music filed a lawsuit against a presidential candidate for using its song at a rally. Newt Gingrich was sued by Rude Music in 2012 after Rude Music claimed that Gingrich played “Eye of the Tiger” at events going back as far as 2009. In any case, Huckabee will still need to start “risin’ up to the challenge of [his] rival,” only now his opponent is an 80s rock star instead of other Republican hopefuls, since, as the Iowa Caucus results proved, Huckabee wasn’t a Survivor after all.

Article By L. Robert Batterman, Michael Cardozo, Robert E. Freeman, Howard L. Ganz, Wayne D. Katz & Joseph M. Leccese of Proskauer Rose LLP

Copyright Suit Alleges Huckabee Campaign Lacks “Eye of the Tiger”

Article By L. Robert Batterman, Michael Cardozo, Robert E. Freeman, Howard L. Ganz, Wayne D. Katz & Joseph M. Leccese of Proskauer Rose LLP

Criminal or Civil Liability for Sharing Streaming Accounts?

We are at the beginning of a new era of media consumption. Traditional content delivery systems such as satellite and cable television are hemorrhaging customers to a wave of “cord cutting” that has been facilitated by the availability of streaming services such as Hulu Plus, Netflix and HBO Go.^[1] Now that smart televisions are becoming more common place, cord cutting is no longer limited to the technologically hip youth, as accessing a Netflix account is as easy as changing the channel.

1-26-2016 3-38-45 PM But with the proliferation of streaming services, users have elected to share the benefits of the accounts―i.e. their passwords―with others. A staggering 46% of accountholders admit to sharing their streaming account password with people outside of their household.^[2] This raises some interesting questions of federal and state criminal, tort and contract laws. What sort of liability might someone have for sharing their account with friends or family? For using a shared account of a friend?

But in order to figure out if sharing of passwords violates the law, we first have to see if it violates the streaming service’s terms of service.

Netflix

Netflix is arguably the pioneer in password sharing. For years Netflix has allowed multiple user profiles to better enable its suggestion algorithm to tailor its offerings to a targeted user. By tactical use of user profiles, parents can limit the likelihood that Netflix will suggest the latest episode of Barney and Friends based on their child’s viewing of Teletubbies the week before.^[3] Netflix has also long offered the ability to stream its services on a limited number of devices simultaneously. ^[4] Netflix’s commitment to account sharing was recently echoed by its CEO Reed Hastings who stated: “As kids move on in their life, they like to have control of their life, and as they have an income, we see them separately subscribe. It really hasn’t been a problem.”^[5] But Netflix’s position on non-family members sharing the passwords has been a little more vague.

Hulu Plus

Hulu has not taken the vocal stance on account sharing that Netflix has. Though it is apparent that Hulu has at least contemplated password sharing to some degree. In section 5 of its terms of use, Hulu acknowledges that people within the same household are likely to use the account, and holds the primary account holder accountable for their activities: “You are responsible for all use of your account, including use of your account by other members of your household. By allowing others to access your account, you agree to be responsible for ensuring that they comply with these Terms and you agree to be responsible for their activity using the Services.”^[6] However unlike Netflix, Hulu Plus accounts are limited to streaming on one device at a time, which minimizes the advantage of sharing.

HBO Go

Like Netflix, HBO Go specifically contemplates the idea of multiple users within the same household. HBO has two tiers of accounts. The first is a “Registered Account” which consists of account holders who meet certain eligibility criteria, namely, they subscribe to HBO and HBO On Demand or Cinemax and Cinemax on Demand.^[7] These Registered Account holders can create “Household Member Accounts” for members of their household. The Register Account serves as the master account for the Household Member Accounts and can control what content the junior accounts have access to. However, despite the ability to create Household Member Accounts, HBO Go appears to take an antagonistic view of sharing the master account password itself. HBO Go’s terms of service specifically state that “You are responsible for all activity occurring under your Registered Account and any Subaccount authorized by you, including maintaining the confidentiality of each Username and Password, and you agree that any household member account users authorized by you will not permit the disclosure of any Username and Password to any person.” Contrast the above statements to Hulu’s request to “Please keep your password confidential,” and it is apparent that one is an order, and the other a request.

But statements by HBO’s CEO bely the strict terms of their agreement. In an interview with Buzzfeed, HBO’s CEO stated: “It’s not that we’re ignoring it, and we’re looking at different ways to affect password sharing. I’m simply telling you: it’s not a fundamental problem, and the externality of it is that it presents the brand to more and more people, and gives them an opportunity hopefully to become addicted to it. What we’re in the business of doing is building addicts, of building video addicts. The way we do that is by exposing our product, our brand, our shows, to more and more people.”^[8]

So HBO intends on building a legion of addicts, and with shows like Game of Thrones, they are well on their way to being the Pablo Escobar of digital content. But like any drug dealer, the first sample is free, but the second is going to cost you. No one knows for sure when HBO will start demanding money for that next “hit.”

It is apparent that these three streaming services all authorize sharing of an account among members of a household. A reasonable argument could be made that this extends to college age children who are away from the home during the school year, but whose primary residence is still their family home.

But what about sharing the account with third parties? What liability might an individual incur if they use a friend’s account with the friend’s permission? Arguably such activity goes beyond the terms of service of a user’s account, and presents some interesting questions of both state and federal law.

Trouble in Tennessee

In 2011, Tennessee, the home of Nashville and the birthplace of country music, became one of the first states to formally criminalize user account sharing. HB1783, effective July 1, 2011, modifies Tennessee Code Annotated Section 39-11-106 subdivision 35 by adding “entertainment subscription service” to the list of services protected by its theft of services offence.^[9] Section 39-14-104 defines theft of services as any person who: “(1) intentionally obtains services by deception, fraud, coercion, false pretense or any other means to avoid payment for the service; (2) having control over the disposition of services to others, knowingly diverts those services to the person’s own benefit or to the benefit of another not entitled thereto.” The punishment for violation of this provision ranges from a misdemeanor to a felony depending on the value of the services rendered.

The first provision of 39-14-104 targets the friend who is using the primary account holder’s password without permission from the streaming service. The person has “obtain[ed] services by . . . any other means to avoid payment for the service.” The second provision targets the account holder who has shared his password with a friend. That person has control of a subscription service and diverts it to his friend, who is not entitled to the service.

California is Not the Golden State For Sharing

It is unsurprising that California would not take kindly to people sharing the fruits of its most visible industry. California Penal Code Section 502 is an “anti-hacking” statute that covers a broad variety of activities. To the extent that sharing a primary accountholder’s password with people outside of the household is beyond the scope of the terms of use of the streaming service, there are several provisions of Section 502 that would criminalize such activity (along with giving a private cause of action), including subsections: (1) “knowingly accesses and without permission . . . otherwise uses any data in order to . . . wrongfully control or obtain . . . data;” (3) “knowingly and without permission uses or causes to be used computer services;” (6) “knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section;” and (7) “knowingly and without permission accesses or causes to be accessed any computer, computer system or computer network.” Violation of these sections can range from a misdemeanor to a felony.

Like the Tennessee law, sections 1, 3 and 7 apply to the friend who is using the account without permission of the streaming service. Section 6 applies to the account holder who is sharing the account with a friend without the permission of the streaming service.

It Might Be A Federal Offense

The Computer Fraud and Abuse Act offers broad protection against unauthorized access to computers. It has been amended a half dozen times in its nearly 20 year history, and likely covers password sharing that is beyond the scope of the terms of service of a streaming account.

18 U.S.C. § 1030(a)(2) makes it a crime to “intentionally access a computer without authorization or exceeds authorized access, and thereby obtains . . . (c) information from any protected computer.” A “protected computer” is defined by 18 U.S.C. § 1030(e)(2) as any computer “which is used in or affecting interstate or foreign commerce or communication.” A streaming service’s streaming servers undoubtedly qualify as a protected computer under the Act as they stream their stored media all across the country.

Using a third party’s password to access a streaming service clearly “exceeds authorized access” as it is beyond the scope of the access defined in Netflix, Hulu Plus, or HBO Go’s terms of use. The user of the password is “obtaining information”―the streamed media―from the protected computer.

An interesting wrinkle is that the Act arguably has a jurisdictional requirement of $5,000 in damages over the course of one year. 18 U.S.C. § 1030(c)(4). This would probably be hard for a streaming site to demonstrate, especially against an individual who is making use of a friend’s password. However, it would be easier to meet the limit for the primary account holder who decided to share the account with a group of friends. All it takes is sharing a $20 dollar a month account with 21 people to meet the $5,000 threshold.

So what does all of this mean? Sharing an account with members of a household is just fine under Netflix, Hulu Plus, and HBO Go’s terms of use. Arguably this extends to children of the account holder who are away at school but whose primary residence is still the family home.

But sharing the password with people outside of the household or using someone else’s account opens up the potential for liability. Not only does sharing a password expose the primary account holder to the possibility of a claim of breach of contract, it also gives rise to various causes of action under both state and federal law for everyone involved.

At the moment none of the sharing services seem to care all that much, and it would be easy for them to mitigate their exposure to shared accounts by simply limiting the number of devices that the account can be used on simultaneously. Some seem to view account sharing as a marketing tool. But all that may change without notice. Sharer beware.

Article By Drew Wilson of Proskauer Rose LLP

_{[1] Todd Spangler, Cord-Cutting Gets Ugly: U.S. Pay-TV Sector Drops 566,000 Customers in Q2, Variety (August 8, 2015).}

_{[2] Is it Okay to Share Log-Ins for Amazon Prime, HBO Go, Hulu Plus, or Netflix?, Consumerreports.org (Jan. 28, 2015).}

_{[3] Netflix User Profiles, Netflix (Jan 14, 2016) https://help.netflix.com/en/node/10421.}

_{[4] Terms of Use, Netflix (Jan 14, 2016) https://help.netflix.com/legal/termsofuse.}

_{[5] Sarah Perez, Netflix CEO Says Account Sharing is OK, TechCrunch (Jan 11, 2016),}

_{[6] Terms of Use, Hulu (Jan 14, 2016), http://www.hulu.com/terms}

_{[7] Terms of Use, HBO Go (Jan. 14, 2016), http://www.hbogo.com/#terms/}

_{[8] Greg Kumparak, HBO Doesnt Care if You Share Your HBO Go Acccount . . . For Now, TechCrunch (Jan 20, 2014),}

_{[9] http://www.capitol.tn.gov/Bills/107/Bill/HB1783.pdf}

When Quirk of Copyright Law Creates Christmas Classic: It’s Wonderful Life and Public Domain

Christmas tree George Bailey stands on a bridge begging for another chance at life. Upon being granted a second chance, he joyously runs home to embrace his family. As the community of Bedford Falls rallies around him and raises funds to save the endangered Building and Loan and George Bailey personally from an unjustified failure, someone proclaims a toast to George Bailey, “the richest man in town.” It’s a powerful ending to a beloved holiday classic, and it would have been forgotten over time but for accidentally allowing a copyright to expire.

The 1909 Act is the copyright act that governs copyrightable works created before 1964. The Act created two, distinct copyright terms for each individual work: a 28-year initial term and a 28-year renewal term. The initial term applied automatically, but the copyright owner had to file a renewal application with the U.S. Copyright Office to get the second term. If the owner failed to file a renewal application before the first 28-year term expired, the work automatically entered the public domain.

Into this copyright framework, a movie called It’s a Wonderful Life was released in December 1946. It was directed by Frank Capra and starred James Stewart. Upon its release, it was not the booming success that one might imagine based on its reputation now. While it was not a complete box-office failure, it struggled financially and never came close to reaching its break-even point. Capra and Stewart would never work together again. In fact, it was a major blow to Capra’s reputation, and in the aftermath of the film, Capra’s production company went bankrupt.

More holiday movies were created over the years, and the film was largely forgotten. At the end of the initial 28-year copyright term in 1974, a clerical mistake prevented the copyright owner of It’s a Wonderful Life from filing a renewal application, and the movie went into the public domain. TV studios, eager for inexpensive content to show during the holidays, began showing the movie every year because they were not required to pay any royalties while the film was in the public domain. Over the next approximately 20 years, the film was shown repeatedly every holiday and claimed its current status as a holiday classic.

Everything changed in 1993. In response to a Supreme Court ruling in Stewart v. Abend, the current copyright owners of It’s a Wonderful Life were able to enforce a copyright claim to the movie. The Court in Steward v. Abend held that a current copyright owner has the exclusive right to exploit derivative works, even in light of potentially conflicting agreements by prior copyright holders. Coincidentally, the Steward v. Abend case involved another James Stewart movie, Rear Window.

Because the current copyright owners of It’s a Wonderful Life still owned the movie rights of the original story on which the movie is based, the current copyright owners argued that their rights to the story told in It’s a Wonderful Life still existed and were enforceable to prevent unauthorized showing of the movie in its current form. The newly-returned owners were thus able to stop any unauthorized showings of the movie, but by then the movie was firmly entrenched as a holiday classic. It has been popular ever since. So the next time you sit down to watch George Bailey offer to lasso the moon for Mary or watch them dancing over an expanding swimming pool, just remember that we all might have missed this movie entirely if not for a clerical mistake causing a renewal application not to be filed.

Article By Lisa Adams & Derek E. Constantine of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Practice What You Preach – Yoga Remains Uncopyrightable, for Now

Bikram Choudhury is famous for being the world’s most successful – and eccentric – yoga guru, and the pioneer of his self-branded, mass marketed Bikram Yoga. Bikram Yoga consists of a sequence of 26 yoga poses, or asanas, and two breathing exercises, performed in a very hot room (100 degrees!) for 90 minutes. The term Bikram Yoga is protected by trademark, but you will see similar yoga practices referred to generically as “hot yoga.” Mr. Choudhury has also been the subject of certain lawsuits filed by women who attended his wildly successful nine-week hot yoga teacher training course (which can cost up to $10,000). But whatever you think about Mr. Choudhury, one thing is clear – he doesn’t want anybody else teaching his specific hot yoga sequence.

Mr. Choudhury has probably come under more fire for his attempt to lock up his hot yoga sequence than he has for his other legal issues. That’s because yoga and intellectual property rights are not ideal bedmates. Yoga is an ancient practice that teaches liberation and growth, while intellectual property tends to be about what’s mine and not yours. To many, trying to “own” yoga in any way is antithetical to the very spirit and purpose of the yoga practice.

But going against the grain does not bother Mr. Choudhury. Mr. Choudhury owns a copyright registration for his Bikram Yoga sequence, attained as a supplemental registration to a 1979 copyright he owns in his book Bikram’s Beginning Yoga Class, which describes the sequence. He has sued several prior students who took his course, went out on their own, and began teaching a 26-pose “hot yoga” course which, Mr. Choudury alleges, is too similar to his own. In response to Mr. Choudhury’s efforts to lock up this particular sequence of poses, Open Source Yoga Unity, an organization for the “continued natural unfettered development of yoga for all to enjoy,” sought a court’s ruling that Mr. Choudhury does not have valid copyright in the Bikram Yoga sequence.

The details of the various legal battles (many of which resolved by settlement before a decision on the merits) are very well explained on Open Source Yoga Unity’s Facebook page (https://www.facebook.com/yogaunity). The key take-aways, so far, are that each yoga asana, itself, is firmly in the public domain. The dispute is only with respect to the specific sequence of 26 yoga asanas that Mr. Choudhury claims to have been the first to select and arrange, as well as all derivatives that are “substantially similar” to the original sequence. See Open Source Yoga Unity v. Choudhury, 2005 WL 756558 (N.D. Cal. April 1, 2005). Resolution of Mr. Choudhury’s copyright claims revolves around whether his hot yoga sequence is a creative expression, copyrightable as choreography, or merely uncopyrightable functional physical movements. Id. Most team sports activities, for example, aren’t copyrightable because they are unscripted and don’t involve a fixed routine of motions. See, e.g., National Basketball Association and NBA Prop., Inc. v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir. 1997) (no copyright in basketball games). Hot yoga would appear to fall somewhere between basketball and ballet. Exactly where yoga falls on this continuum of creativity remains to be determined.

In 2012, the United States Copyright Office issued a policy statement, stating that yoga sequences are “not the equivalent to a pantomime or a choreographic work” and “could not be protected as compilations[.]” The Copyright Office recognized that it had been an error allowing Mr. Choudhury to file his supplemental registration, and that no other registrations of that type would be allowed. You have to wonder if Mr. Choudhury smiled at that – not only does he own a registration for his yoga sequence, but nobody else ever will!

But, the Copyright Office’s Policy Statement is merely that; it is not law. In Open Source Yoga, seven years prior, the court held that while “application of the law of compilations to yoga asanas appears to violate the spirit of yoga,” it was “unable to locate any authority that precludes such application.” Therefore, if the trier of fact determined that a sufficient number of individual yoga asanas are arranged in a sufficiently creative manner, copyright protection would be available. The case settled outside of court. In a case filed after the Copyright Office’s Policy Statement, the court agreed with the Statement, holding that where the poses are said to result in improvements in one’s health or physical or mental condition, as Mr. Choudhury claims they do, they are not copyrightable. Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 2012 WL 6548505 (C.D. Cal. Dec. 14, 2012). Mr. Choudhury promptly appealed this ruling and, as of this article, we await a decision from the Ninth Circuit Court of Appeals.

For now, the ancient yoga teachings of liberation, spirituality, and healing carry the day. But, given Mr. Choudhury’s litigiousness and the uncertainty of the pending appeal, yogis still have to look over their shoulders when teaching Mr. Choudhury’s particular brand of hot yoga.

Article By Nadya Davis of Holland & Hart LLP

Using Copyright Protection in Architectural Works to Police Unauthorized Photographs

Can I stop photographers from taking, displaying, and selling photographs of my building? The answer is, like the answer to so many other questions, maybe.

This issue often arises in the context of photographers who license their photographs for a fee through online stock image sites. The photographs are taken without authorization and present a building (and potentially the owner or occupants) in a negative light or disclose features of the building that the owner or architect would prefer remain visible only to those who see the them first hand.

If the area of concern is a building’s interior, the first step in limiting unauthorized photographs is to expressly prohibit photography. If you can show proof of such policies, most websites will remove the photographs without further question. But for various reasons, you may not have an express policy posted in your building. If that is the case, another option may be to enforce your intellectual property rights in the building itself.

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, including architectural works. 17 U.S.C. § 102(a)(8). An owner of a copyright in an architectural work may prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is not located in or ordinarily visible from a public place. See id. § 120(a). Thus, if a building embodying a design to which you own the copyright is the subject of someone else’s photograph, you can potentially stop the display and distribution of that photograph.

Whether you own the relevant copyright should not be difficult to determine. It either belongs to the creator of the building’s design (i.e., the architect) or, by agreement, to someone else (perhaps the building’s owner). Whether your building is a building for purposes of the Copyright Act is slightly more complicated. According to legislative history, the term “buildings” includes “habitable structures such as houses and office buildings. It also covers structures that are used, but not inhabited, by human beings, such as churches, pergolas, gazebos, and garden pavilions.” H.R. Rep. No. 101-735, 101st Cong., 2d Sess. 20 (1990).

Assuming your structure is a “building,” the final question is whether it is located in or ordinarily visible from a public place. Legislative history does not provide guidance on the interpretation of this phrase, presumably because the legislature believed public place would be understood according to its plain meaning—i.e., “any location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building.” Black’s Law Dictionary (9th ed. 2009). Courts have likewise been silent on the issue.

Nevertheless, stock image sites are reluctant to simply accept a presumption. Their business depends on their users being able to take and license photographs, and, for them, a more expansive view of public place is preferable. In our experience, many sites will argue that any property open to the public is a public place, regardless of whether the property is privately owned. This interpretation, however, would render buildings like churches and museums not protectable despite the clear intent that such structures be eligible for protection.

Moreover, other areas of the law support the proposition that opening private property to the public does not affect a property’s private nature. For example, a person granted a license to enter a property is still liable for trespass if she exceeds the scope of the license. Similarly, a property owner does not surrender her right to exclude simply by allowing invitees to enter her property. In addressing the nature of private property open to the public, the United States Supreme Court stated the following in the context of First Amendment public forum analysis: “Property does not lose its private character merely because the public is generally invited to use it . . . the essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.” Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).

In light of the foregoing, the logical conclusion is that an otherwise private place open to the public is still private and not a “public place” under the Copyright Act. Applying this conclusion to 17 U.S.C. § 102(a), interior spaces of buildings located on private property should be entitled to protection, because they are not located in or ordinarily visible from a public place. Whether a building’s exterior is protectable, however, would depend on whether the building is visible from a public place, such as a road or sidewalk. Assuming the building is not visible from a public place, your copyright entitles you to stop others from taking, displaying, and selling photographs of the building.

Article By

Zachary T. Gordon

Lewis Roca Rothgerber LLP

To Apple, Love Taylor: Apple Responds with Royalties

“To Apple, Love Taylor” has been the tweet heard ‘round the music world. With more than 61 million followers, Taylor Swift has become the “loudest” voice for emerging and independent artists in the music-streaming realm. As copyright lawsuits from record companies continue to crop up across the industry, music-streaming service providers have become far more sensitive to the demands of artists and the trend for higher royalty payments. Case in point: when Taylor “streams” for royalties, Apple responds.

Taylor’s tweet to Apple explained, “with all due respect,” why she was planning to withhold her mega best-selling album 1989 from Apple’s new music-streaming service, Apple Music. Apparently, Apple’s plan to withhold royalty payments from musicians during the service’s initial, free three-month trial period did not sit well with Swift. Speaking primarily on behalf of emerging and independent artists, Swift deemed three months “a long time to go unpaid.” Taylor’s stance followed a long line of objections from songwriters, artists, and labels over allegedly unfair payment by music-streaming services. Recently, the Turtles and other performers brought suit against Sirius XM to collect royalty payments that had not been paid for songs produced before 1972. Previously, big streamers like Sirius XM and Pandora were not paying royalties for songs launched before 1972 because they were not protected by federal copyright law. In the wake of the Turtles suit, Apple was swift to respond to Swift’s plea. Eddy Cue, Apple’s senior vice-president of internet software and services, tweeted “we hear you @taylorswift13 and indie artists” and called Taylor to deliver the news personally. Apple had reconsidered its plan and will now be paying artists royalties at the outset of its Apple Music launch.

Clearly, Taylor’s attempt at flattery, saying that the initial decision to withhold royalty payments was surprising in light of Apple’s reputation as a “historically progressive and generous company,” got her everywhere. Taylor claimed that her complaints were not the rantings of a “spoiled, petulant child,” but rather “echoed sentiments of every artist, writer, and producer in [her] social circles who [we]re afraid to speak up publicly because [they] admire and respect Apple so much.” As she pointed out, Apple’s plan to offer royalty-free streaming during its initial start-up period could have had disastrous effects on artists planning to release new albums during that time. While the cost of these royalties may not be relatively significant to Apple, the goodwill and favor fostered among artists, labels, and consumers is invaluable. Apple’s move indicates that artists are finally succeeding in shifting royalty payments more toward their favor via lawsuits, negotiations, and now very public Twitter exchanges. The power of public opinion is not only strong but, these days, instantaneously widespread, and Apple was smart to respond.

It seems that Sirius heard Apple too. Just days after Eddy Cue’s public response to Taylor Swift, Sirius settled its lawsuit with the Turtles to the tune, no pun intended, of $210 million for its broadcast of songs produced before 1972. Under the settlement, Sirius will continue to play the older songs until 2017, at which time it will strike new licensing deals with affected artists. With this settlement in place and with the established prospect for older performers to collect royalties in the future, the Turtles and Sirius are once again “Happy Together.”

This public discourse over streamed music, copyrights, and royalty payments illustrates the fast-paced evolution of the industry since the introduction of digital music files in the Napster heyday. Streaming services have been forced to anticipate and address the demands of artists, particularly that of the growing request for greater royalties. While a voice as “loud” as that of Taylor Swift may warrant an immediate, calculated response, it is likely we will see more music royalties and other digital copyright litigation in the years to come.

ARTICLE BY

Annie Dike

IMS ExpertServices

Tag: copyright

Short Samplings of Songs May Not Be Considered Copyright Infringement After All

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