Category: Copyright Infringement

Sherlock Holmes is (Free) for the Public Domain

Posted by Ari Good, JD LLM on January 6, 2014

Sherlock Holmes in the Public Domain? Elementary My Dear Watson.

A federal judge recently ruled that Sherlock Holmes (and most of his story) belongs to the public. The legendary sleuth first made his appearance in 1887. Author Conan Doyle would go on to publish four novels and 56 stories about Holmes’ exploits until his death in 1930. All but 10 of those stories, notably, were printed before 1923. The judge, in applying U.S. Copyright law, used the 1923 year as the cut-off line for what is, and what isn’t, in the public domain when it comes to Sherlock Holmes. Anything before that year can be used by anyone. Stories after January 1, 1923, are still protected by copyright law, however.

What is the “Public Domain”?

Public domain is the simple concept that, after a certain amount of years, copyrighted work no longer enjoys protection. The public is free to use formerly copyrighted works in any way they choose and don’t have to pay an author, the author’s estate, or a copyright holder. It’s free! Federal law, however, has consistently shifted the goalposts for how long it takes a copyrighted work to enter the public domain.

The first U.S. Copyright Act in 1790 allowed a term of copyright for 14 years, and the author could renew that copyright for 14 more years. By 1909, the copyright term had doubled to 28 years with an option for a 28 year renewal of the original term. Thanks to the Sonny Bono Copyright Term Extension Act of 1998, federal law now authorizes a copyright term that covers the author’s entire life, and then 70 more years after that. A young musician or writer, for example, who publishes work in 2013 when they’re 25, lives until they’re 85, would have that work copyrighted for 130 years (or until 2143).

Why is 1923 Important to U.S. Copyright Law and Public Domain?

January 1, 1923, is a date to know when it comes to copyright law. Works that authors published before this date are in the public domain and not protected by copyright. No exceptions. A complex web of laws and calculations, however, apply to works published after this date to determine whether there is still copyright protection. You can find specific details about those calculations here.

Copyright Law, Sherlock Holmes, and Public Domain.

In a nuanced decision, the federal judge held fast to this sticking point of January 1, 1923. He ruled that the parts of of Sherlock Holmes’ and Dr. Watson’s story published before 1923 are in the public domain. Parts of that story published after that date, including Dr. Watson’s background as an athlete, Dr. Watson’s second wife, and Holmes’ retirement, are still protected by copyright law and owned by Doyle’s family.

The judge rejected arguments that the Sherlock Holmes’ literature was a single story-line that couldn’t be separated before and after 1923. In other words:

1. Doyle’s publication of Sherlock Holmes literature before 1923 does not make the entire story-line public domain (Sherlock Holmes publications after Jan. 1, 1923).

2. Likewise, Doyle’s publication of Sherlock Holmes literature after Jan. 1, 1923, does not make the entire story-line protected by copyright (Sherlock Holmes publications before 1923).

This case proves that public domain domain and the term of copyright are still important issues for authors, artists, musicians and other creative types. If you have any questions on this topic, feel free to ask.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the shareholder of Good Attorneys at Law, P.A. He graduated from the DePaul University College of Law in 1997 and obtained his L.L.M. in Taxation from the University of Florida.

Image by timofeia

Feds Release Details on Megaupload’s Kim Dotcom Criminal Copyright Case

Posted by Ari Good, JD LLM on December 23, 2013

A Deluge of Emails Shows Intent to Violate Criminal Copyright Law

In a test of the reach of American copyright law, the U.S. Department of Justice (U.S. DOJ) has released a 200 page summary of its criminal case against Kim Dotcom. The Feds claim that its documents prove Dotcom’s intent to violate criminal copyright law with his shuttered website, Megaupload. They also claim his criminal enterprise caused the American entertainment industry $500 million in lost profits. Now it’s up to New Zealand officias to decide whether the U.S. can extradite Dotcom to face these charges.

Who is Kim Dotcom?

The eponymous Dotcom, born Kim Schmitz, was a notorious hacker in his native Germany. Police eventually arrested him in 1994 for trafficking in stolen phone cards, but he evaded serious punishment for what a judge called “youthful foolishness” (despite being 20 at the time of his arrest). He eventually moved on to Thailand to dodge charges of insider trading in the early 2000’s. Thailand authorities arrested him anyways and deported him back to Germany. Dotcom again managed to avoid a prison term and left for Hong Kong in 2003.

It was around this time that Dotcom set up Megaupload (among some more questionable investment activity). He generously called his file hosting and sharing website a “provider of cloud storage services” or cyberlocker. More dubious commentators would call it a internet piracy mecca. At one point, Megaupload was the 13th most popular site on the internet and claimed 4% of the world’s traffic.

The Feds’ Case for Criminal Copyright

In 2012, the U.S. DOJ indicted Dotcom in U.S. federal court on criminal charges ranging from Conspiracy to Commit Copyright Infringement to Racketeering. By that time Dotcom had become a resident of New Zealand. Briefly imprisoned there, Dotcom is now out on bail and hiding away in his New Zealand mansion.

Emails and Skype messages released by the U.S. DOJ appear to show Dotcom had less than honest intentions for Megaupload.

“I have a feeling that Kim tolerates a certain amount of copyright violation.”

But digging deeper into the U.S. DOJ’s summary, there doesn’t appear to be much in the way of direct admission by Dotcom of an intent to violate criminal copyright law. Rather, there is a lot of innuendo and circumstantial evidence. Dotcom forwarded emails to other corporate officers about piracy and Megaupload, complained of lost revenue when employees complied with DMCA requests, and was included in emails by other Megauplaod officials who made more direct admissions.

The U.S. DOJ’s other problem with this international caper, though, is Dotcom’s residence in New Zealand. They’ll have to wait until at least 2014 for judicial authorities there to decide whether the U.S. can extradite Dotcom.

Dotcom’s Defense to Criminal Copyright Charges

Dotcom appeared to have relied upon a distorted understanding of U.S. copyright law to justify his actions. Dotcom, in the U.S. DOJ’s release, repeatedly referred to DMCA takedown requests. This part of copyright law requires copyright holders to inform ISP’s of copyright infringing material before the ISP needs to remove that material. Of course, the infringing content providor must have had a good faith belief their actions were legal in the first place. Or that they were at least ignorant of its legality.

An extension of this defense theory is that Megaupload is simply a “cloud” storage platform. Prosecutors cannot hold Dotcom responsible if people use the site for online piracy. Not suprisingly, a host of witnesses, including the MPAA, RIAA, and BSA, are ready to go to court to dispute Dotcom’s story of benevolent intentions.

This story warrants further attention to see how far the reach of U.S. copyright law can extend.

Image by sam_churchill

The Right to Digital Public Performance

Posted by Ari Good, JD LLM on August 16, 2013

The Six Rights of Copyright – Part VI: The Right to Digital Public Performance

The Bundle of Rights That Make Up Copyright

The digital public performance right is the sixth and final part in our series on what makes a Copyright. The prior five rights reviewed are linked below. To refresh, the six parts of copyright are:

The right to reproduce the copyrighted work
The right to prepare derivative works based upon the work
The right to distribute copies of the work to the public
The right to publicly perform the copyrighted work
The right to publicly display the copyrighted work
(sound recording only) The right to digitally transmit to publicly perform the copyrighted work

We’re individually exploring each of these rights to get behind the opaque curtain of copyright. An understanding of each right and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows the copyright holder only to exercise these rights.

VI: The Right to Digital Public Performance of Sound Recordings

The right to digital public performance of sound recordings is an extension of the traditional right to public performance. Copyright holders have the exclusive right to publicly perform their sound recordings–a particular recording of a musical composition (e.g. master recording, masters)–via digital transmission (e.g. internet, satellite radio). The older right to public performance specifically excludes sound recordings. This right is limited because it does not cover analog transmissions such as traditional radio or television.

Why the Right to Digital Public Performance?

Digital Public Performance - Webcasting — Digital Public Performance: Webcasting

Congress created this copyright protection (DPRSRA legislation) because of advances in technology. High quality digital copies of sound recordings became easy and cheap to make in the 1990’s. Suddenly, people could readily profit from this practice and artists had little legal recourse. The digital public performance right creates a partial solution for this gap in copyright law. Groups that want to legally play sound recordings via digital transmission (think Spotify and Pandora) now must pay for that right. It was perfectly legal to not pay prior to this legal update. An organization called Sound Exchange currently administers the licensing of sound recordings.

There is a three-tier system that sets the licensing fee for sound recordings. The first tier doesn’t require certain broadcasters to pay any licensing fees. The second tier requires broadcasters to pay a “statutory” licensing fee set by the Copyright Board. The third tier requires broadcasters to negotiate the licensing fee directly with the copyright holders. Much of the highly publicized dispute over fees for sound recordings is about this second tier payment structure. Artists, broadcasters, and other interested groups vehemently disagree about the correct licensing fee amount and how to calculate that fee.

Limitations on the Right to Public Display

The most important limitation on copyright protection for sound recordings is that it only covers digital transmission. It’s business as usual for analog broadcasters in radio and television. The details of the digital public performance right also has many more nuances. It’s a fair complaint by sound recording copyright holders that they’re treated unfairly when compared to musical composition copyright holders. It’s also safe to say that no one (artists, broadcasters, and copyright holders) is actually satisfied with this copyright protection.

Ari Good, JD LLM, is a Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

Image by Doug Symington

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

Posted by Ari Good, JD LLM on July 18, 2013

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

Apple’s Commercial Uses Copyrighted Image Without Permission

A federal judge has ruled that Apple doesn’t have to share profits with a photographer over their infringing use of an image in an iPhone commercial. This lawsuit started when prominent fashion photographer Taea Thale snapped a promotional photo of the band She & Him. Hipster actress Zooey Deschenel (of TV and movie fame) is one half of the band duo and a former Apple endorser. Ms. Thale registered her copyright to the photo and then licensed it with Merge Media for band promotion. That license prohibited specifically the use of the photo to hawk other products.

Apple would later air a commercial for 2 weeks in 2010 that advertised its iPhone 3GS. The 30 second commercial was a montage of images showing the iPhone’s latest innovations, including including album cover art. 5 seconds of that commercial used Ms. Thale’s image of She & Him as part of the montage, despite Apple never getting permission to use it. When a royalty check never arrived from Apple, Ms. Thale sued the company for copyright infringement.

So What’s the Harm from Apple’s Infringement?

Ms. Thale’s lawsuit asked specifically for profits from Apple’s sale of iPhones that the infringing commercial promoted. The Court, however, shut this claim down. A copyright lawsuit typically complains of infringement that creates direct profits for the offender. A musician who rips off lyrics profits directly from album sales. An author who steals a plot from another writer profits directly from book sales. And a magazine that uses photos without permission profits directly from subscription sales. The facts of Ms. Thale’s case, on the other hand, could only support that Apple profited indirectly from its infringement. Apple didn’t profit by people viewing its infringing commercial (rather, it likely paid large sums to air the commercial), but could only have profited indirectly through the sale of the iPhone on the back end.

Ms. Thale’s copyright claim ultimately failed because she couldn’t prove Apple profited from its infringement. Apple’s copyright infringement was not an issue. In a claim for indirect profits, however, the plaintiff must offer concrete evidence of that profit. The Court decided in this case that the facts showed that Apple only hoped to generate iPhone sales from the commercial. Ms. Thale didn’t offer any actual proof of boosted profits and could only speculate that the commercial generated increased iPhone sales. The Court also noted a logical and reasonable argument (such as Ms. Thale’s) is still just speculation and does not add up to proof of profits. It’s not enough to show there is some relationship between the infringement and profits, there must be a cause and effect relationship between the two.

Does Apple Just Get Away with its Copyright Infringement?

Apple is not off the hook just yet. The Court only decided Apple doesn’t have to share profits. Ms. Thale can continue to seek damages for any actual harm that Apple’s infringement caused her (e.g. her lost profits!). This case teaches what’s necessary to make a claim when infringement creates indirect profits.

Join the discussion and leave a comment.

Ari Good, JD LLM, is an experienced Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters. For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com. Visit goodattorneysatlaw.com for more information.

Image by Mindy Bond

Filmmaker Ungrateful About Claimed Copyright Infringement

Posted by Ari Good, JD LLM on July 9, 2013

Filmmaker Ungrateful About Claimed Copyrighted Infringement

The Back Story for the Copyright Infringement Lawsuit

Grateful Dead copyright infringement — Grateful for copyright law

A California filmmaker, Len Dell’Amico, is suing the Grateful Dead for copyright infringement over his allegation that the band leased documentaries and concert films that he created and owned. This long, strange trip begins in 1980 when Dell’Amico, a NYU film and television grad, first worked with the band on it’s live TV broadcast and home video ‘Dead Ahead.’ Dell’Amico would go on to be the Dead’s ‘film and video guy’ for the next 11 years, producing and directing their film projects from 1984 to 1991. Dell’Amico also claims in his lawsuit that they negotiated a deal for back-end compensation from the video release of these works. The years rolled along and, in late 2006, Grateful Dead Productions leased the films to Rhino Entertainment for 10 years. Rhino never credited Dell’Amico for producing and directing the films, nor paid him the promised back-end compensation (“royalties”). The lawsuit was on.

Failure to Register Copyrights Creates a Problem

But here’s the rub: Dell’Amico never applied to register any copyrights to the films until recently. The registrations are currently pending at the U.S. Copyright Office. Dell’Amico lacks definitive proof that he actually owns the right to the films. And this is exactly what the band is arguing. The Grateful Dead recall things differently from Dell’Amico and claim he was only a hired gun to produce and direct their films. The band owns all rights to the films because Dell’Amico was compensated for his work and their arrangement kept copyright ownership with the band. As it stands, without the clear proof of copyright registration, it’s a he said, they said matter.

Copyright Ownership Can Still be Proven in Other Ways

This doesn’t mean that Dell’Amico’s lawsuit is busted down on Bourbon Street. A 2002 agreement for a Grateful Dead documentary “So Far” gives Dell’Amico a 50 percent cut of the film’s revenue up to $25,000 and 15 percent of gross income over $750,000. This agreement does provide some proof that Dell’Amico created and owns the rights to the films that are the subject of his lawsuit. That agreement clearly came about because there was a belief Dell’Amico owned the copyright to the film. It may also show that he owns the copyright to the films that are the subject of his lawsuit.

Two Important Lessons from this Copyright Infringement Lawsuit

However the lawsuit plays out, the dispute highlights two important principles. The first is an overwhelming reason to register your copyrights. Dell’Amico likely would have a much easier time proving his allegations if he had taken the time to register any copyrights two decades ago. This lack of foresight could cost him big time. The second is over the issue of copyright ownership. If you are hired to create works that are covered by copyright law (music, film, television, dance, etc.), an important part of that arrangement is who keeps ownership of the copyright to the works.

Add a comment to share your own story or your thoughts on these issues.

For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

Image by Gazerocker