Archive for the ‘intellectual property’ tag

Lawsuit against Aereo heads to the Supreme Court

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The New York-based startup Aereo has recently been making waves in the digital television world by creating a low-cost option for consumers to watch and record live broadcast television, providing a service similar to Internet-based streaming websites such as Hulu. Aereo, however, stands apart from these services: Aereo leases to each subscriber an individual remote antenna, allowing these subscribers to view and record certain live television broadcasts on Internet-connected devices without having to purchase a subscription to the entire broadcast packages offered by cable companies.

Although Aereo has enjoyed tremendous success in the two years since its founding, Aereo has recently been embroiled in legal battles over whether its business model constitutes a public performance, which would legally require Aereo to obtain retransmission consent from the content providers. Last month, the District Court of Utah became the first to temporarily shut down the service. Judge Dale A. Kimball of the District Court of Utah granted a preliminary injunction sought by broadcasting companies such as Fox claiming that Aereo is stealing their broadcast signals for profit, shutting down Aereo’s services in Salt Lake City and Denver. Such injunctions have been previously denied in the New York and Boston.

Aereo founder and CEO Chet Kanojia states that the television industry is terrified of Aereo, and that the company was “extremely disappointed” in the recent decision. Kanojia claims that the antennas used in this service must be treated the same as antennas that people use to pull TV signals for free.

This argument rings true in one deep respect – any individual can travel to Radio Shack and upgrade their television antenna. Yet, retransmission is currently illegal, and Aereo has created a service that works around this by renting antennas and virtual connections, a method that is hanging on by a mere technicality.

Broadcasting companies such as ABC, Fox, NBC, and CBS have the highest stake in seeing Aereo fall; they currently claim that Aereo is stealing their content, and that their practice could even lead to the end of broadcast television. Major broadcasters have expressed concern that cable providers, who currently pay broadcasters to the tune of $4 billion in transmission fees per year, may set up services similar to Aereo and will no longer pay fees, depriving broadcasters of all profit.

American Broadcasting Companies v. Aereo will be heard in front of the Supreme Court in April, featuring “two American archetypes in a battle that could upend the television industry.” As the New York Times states, this decision will have “far-reaching implications for a television industry already in upheaval, facing challenges from online streaming, Internet-enabled TVs, ad-skipping devices, and now, the tiny antennas that Aereo uses to capture broadcast signals.” The Aereo issue demonstrates the fundamental difficulty in technology and law – technology is outpacing law faster than ever, while legal standards struggle to keep up with ever-evolving industries.

Smart Licensing Lifts Lego to the Top of the Toy World

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So when exactly did the brightly colored building blocks we played with as kids transform into a wildly successful multimedia entertainment platform? On February 7, the Lego Movie stormed theaters and notched one of the top opening weekends ever for a non-sequel animated film. Outside the cinema, Lego-themed video games and building sets featuring licensed properties have become incredibly popular with both children and adults. The most obvious indicator of the company’s recent success is its new position as the most valuable toymaker in the world. So how did they do it? Some of the success can be attributed to a forward-thinking business model that managed evolve the brand while honoring tradition. But mostly the new Lego is the product of lucrative licensing.

Lego’s breakthrough with licensed intellectual property began in 1999 with an agreement to license Star Wars characters and vehicles. Since the closing of that deal, Lego has sold over 200 million Star Wars Lego boxes and negotiated a new deal in 2012 that will allow the company to produce Star Wars themed products until 2022. On the heels of the Star Wars success, Lego smartly committed itself to obtaining licensing arrangements with established brand universes, including Harry Potter, Lord of the Rings, DC Comics, Marvel and Disney. The move paid off. In 2012, royalty expenses amounted to $263 million while profits reached $4 billion.

Licensing intellectual property has been a backbone of the toy business for decades, so why is Lego’s model making such a huge difference to its bottom line? For starters, the screening process for determining which properties Lego licenses is incredibly detailed, and its managers turn down far more licensing opportunities than they accept. By partnering exclusively with brands of wide global appeal, Lego has been able to ensure that the quality of its own brand isn’t diluted via association. Smart property selection helps, but what really sets Lego apart from other toymakers is the way it blends licensed properties with its own style to create what are essentially new properties. As a result, Lego’s Star Wars platform is more than mere reproductions of iconic Star Wars characters and vehicles in Lego form. It has become its own brand, Lego Star Wars. Additionally, many Lego interpretations of classic characters have assumed their own personality, and are often far different than their film or comic book counterparts. For example, the original Batman is dark and brooding, but Lego Batman is comedic and suitable for children.

Lego has also been able to secure separate licensing deals from brands that are themselves fierce competitors. While Warner Brothers and Disney engage in an arms race of intellectual property acquisition to order to bring ensemble blockbusters to the big screen, Lego works behind the scenes knowing that it stands to benefit from the success of both companies. In 2015, Disney will launch Avengers 2: Age of Ultron, and Star Wars Episode VII, two of the most highly anticipated movies of all time. In the same year, WB–who distributed the Lego Movie –will launch the tentatively titled Batman v. Superman, it’s own long-gestating ensemble act featuring a slew of globally recognized comic book characters from the DC comic book universe. With the necessary licensing agreements already in hand, Lego will be ready to capitalize on the success of all three, suggesting an even brighter future for the brightly colored building bricks.

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March 5th, 2014 at 2:40 pm

Just a Playlist… or Something More?

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Music streaming service, Spotify, has yet again found itself at odds with a creator in the music industry. This time around, the disagreement centers on a more novel question: Does a compilation constitute copyrightable intellectual property? According to U.K. based dance-music record label, Ministry of Sound, it does. Ministry of Sound, or MoS, has recently filed a lawsuit in the U.K. High Court against Spotify, claiming copyright infringement. MoS produces compilation albums comprised of songs which the label has not itself created, but has selected and placed in a purposeful, specific order on the album. The record label’s “beef” with Spotify is grounded in the fact that the streaming service currently allows users to create playlists that essentially emulate the compilation albums. Further irritating the label, some users even go as far as to title those playlists “Ministry of Sound.” To be clear, the users are not illegally downloading the MoS albums; they are instead legally listening to the individual tracks through the streaming service and replicating MoS’ order of the tracks in their own playlists. After pleading with Spotify to remove these playlists since last year to no avail, MoS finally had enough and essentially said, “see you in court.” This case will turn on the issue of whether or not the order/structure of the content on MoS’ albums is copyrightable.

But what are the odds that a court will actually determine that the compilation albums (in terms of their ordering of songs) constitute copyrightable material? The claim MoS is making is certainly deserving of at least some consideration. Factually, we can see how the artistic compilation of music is the result of a unique, creative process. This process may even require extensive research and hours of dedication to deriving the perfect order. For those reasons, there is an argument to be made that the end result of the process is an original work. Where MoS will likely find its greatest struggle in this lawsuit, however, is in showing that its compilation albums constitute a work original enough to be worthy of copyright protection. Since the filing of the lawsuit, many comments on the relevant articles and blog posts have shown disdain for the idea that taking music that someone else created, and placing it in a specific order on a playlist, could constitute anything that could even remotely be considered copyrightable, or truly original. When MoS’ albums are equated with mere playlists (which are viewed as lists that require no skill or real effort to produce) the future for MoS in this lawsuit against Spotify doesn’t look so bright.

While the public consensus seems to be that MoS’ claim simply does not hold water, the worlds of music, technology, and copyright should certainly keep a close eye on this case, as the possibility exists that the UK court could side with MoS. This is an issue of copyright definition and protection that the courts have not yet faced (MoS is the first label to make this type of claim), and it could wind up being a real game changer for the industries involved. If MoS wins, this could strike a major blow to the business model of Spotify and other music streaming services that allow users to create playlists, as playlists are becoming an increasingly prevalent and important form of music consumption. If MoS loses, the compilation sales business model for MoS may prove unsustainable—will people continue buying the compilation albums when they can just recreate the same playlist for free on Spotify? Additionally, MoS’ claim could be the catalyst for similar claims to be brought in US courts.

Through these cases, law and technology continue to shape the ways in which we view art and originality. In today’s world, where will the court draw the line of what is and is not art in the sense of copyright?

To find out, we’ll just have to stay tuned.

Composers of Hit Song File Declaratory Judgment Action

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Faced with the prospect of copyright infringement lawsuits from Bridgeport Music, Inc. (“Bridgeport”) and Marvin Gaye’s heirs (the “Heirs”), the composers of the multinational hit song “Blurred Lines” filed a declaratory judgment action against Bridgeport and the Heirs in the United States District Court for the Central District of California on August 15, 2013.  Through this action, the composers, namely Pharrell Williams, Robin Thicke, and Clifford Harris, Jr., request that the court declare that “Blurred Lines” does not infringe Bridgeport’s composition “Sexy Ways” or Gaye’s composition “Got to Give It Up.”

The lawsuit alleges that Bridgeport and the Heirs have continually insisted that “Blurred Lines” infringes their respective compositions and have stated an intention to file a lawsuit for copyright infringement if not compensated.   The composers, however, claim that “[t]here are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements.”  Instead, according to the suit, the composers “created a hit and did it without copying anyone else’s composition.”

Generally, to establish a claim for copyright infringement a plaintiff must establish:  (1) copying of a prior copyrighted work; and (2) a substantial similarity to the prior copyrighted work sufficient to constitute unlawful appropriation.  A plaintiff can generally demonstrate the first element based upon evidence of access to the copyrighted work and similarity.  Here, it does not seem to be disputed that the composers had access to “Sexy Ways” or “Got to Give It Up.”  Indeed, according to the suit, the “intent in producing ‘Blurred Lines’ was to evoke an era.”  The question remains, however, whether the similarities between “Blurred Lines” and the prior works are sufficient to demonstrate “copying” and “substantial similarity.”

To date, neither Bridgeport nor the Heirs have filed an answer to the composers’ complaint.

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September 29th, 2013 at 10:47 am

Fair Use in an Educational Setting

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The University of Michigan just recently won a lawsuit in which the University was alleged of copyright infringement in its effort to digitize its library contents. On September 12, 2011, the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors filed a lawsuit against HathiTrust, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University for copyright infringement. On October 10, 2012, a Federal District Court in the Southern District of New York dismissed the suit finding that the University of Michigan’s use of books fit within “fair use” of the Copyright Act.

HathiTrust was created through a collaboration of universities in order to establish a repository for those universities to archive and share their digitized collections. The Authors Guild argued that the access HathiTrust provided to the scanned materials was in violation of their members’ copyrights, claiming that the universities had pooled the unauthorized scans of an estimated 7 million copyright-protected books. The Authors Guild also claimed that while many U.S. universities had allowed the scanning of books that were in the public domain, only the defendant universities had allowed copyright-protected books to be scanned.

One of the major issues with the HathiTrust digitalization plan was a project called Orphan Works. Orphan Works are books that are subject to copyright but whose copyright holders cannot be identified or located. As a consequence, users cannot seek permission to use these works in ways that might involve copying or distributing the work. The Authors Guild claimed that the procedures for determining whether a work should be deemed an “orphan” were deficient, as “within days of the suit’s filing on September 12th, the Authors Guild, its members, and others commenting on its blog had developed strong leads to dozens of authors and estates,” while in other cases “simple Google searches turned up most of the leads in minutes.”

HathiTrust has repeatedly claimed that the primary motive driving the digitalization effort was preservation for a scholarly purpose, as the sharing was limited to online reading by faculty and students of participating universities. The scholarly purpose of the digitalization would make the sharing legal under Section 107 of U.S. copyright law, which allows for fair use of a copyrighted work without infringing the copyright. HathiTrust argued that educational, non-profit uses of copyrighted works, falls within previous interpretations of what qualifies as “fair use.”

Federal District Judge Harold Baer Jr. of the Southern District of New York ruled in favor of HathiTrust, stating, “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use … I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ [Mass Digitalization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.” With this ruling, Judge Baer has “reaffirmed the role of libraries as promoting knowledge creation and equality of access.”

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February 4th, 2013 at 12:00 am

Supreme Court to Revisit Question of Patentable Subject Matter

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Since the establishment of the Federal Circuit three decades ago, the Supreme Court has tended to distance itself from the development of patent law. As the Federal Circuit holds exclusive jurisdictions over appeals arising from disputes involving patents, circuit splits are unlikely to arise, and its judges are deeply familiar with the subject area. Thus it is not entirely surprising that as a general matter it is rare for the Supreme Court to review its judgments.

 However, in recent years the Supreme Court has reviewed several high profile Federal Circuit high-profile decisions, perhaps most notably in the area of the scope of patentable subject matter under 35 U.S.C. § 101. In Bilski v. Kappos, the Court agreed that an investment strategy was unpatentable subject matter, but indicated ambivalence towards the Federal Circuit’s chosen analysis. This year, in Mayo Collaborative Services v. Prometheus Laboratories, Inc, the Court held that claims over a medical diagnostic test were unpatentable “products of nature,” reversing the Federal Circuit.

On November 30, 2012, the Supreme Court granted review in Assoc. for Molecular Pathology v. Myriad Genetics, a case involving the patentability of human genes. The case has had a long journey through the federal courts. In 2011, the Federal Circuit found that claims over “isolated” DNA molecules are patentable subject matter, as well as certain associated method claims. This judgment was vacated and remanded to the Federal Circuit for further consideration in light of Mayo. On remand, the Federal Circuit once again held these patents to be directed towards patentable subject matter. Now before the Supreme Court again, it is likely that the Court will be directly addressing the question of whether human genes are patentable.

Petitioner argues that the patents at issue are invalid because they claim subject matter directed to a law or product of nature. They claim that these patents, which cover “isolated” forms of the BRCA1 and BRCA2 genes linked hereditary breast and ovarian cancer, have prohibited clinical testing, scientific research, and patients’ access to their genetic information. The respondent, Myriad Genetics, claims that the patents cover subject matter that was human-made and does not occur in nature. Myriad stresses the “enormous amount of human judgment” involved in their research and development of this area, and the importance of patent protection to support their industry.

This case is likely to be closely followed by many. Patentable subject matter is an area that the Supreme Court has shown a close interest in recently, lending much uncertainty to the state of the doctrine. Patent lawyers and scholars will wait to see whether the Supreme Court clarifies this area of law. The decision is likely to have a major impact on the biotechnology industry, who for many years has successfully obtained patents such as the ones at issue here with relatively little questioning of their validity. The public will be watching as well, as the question of whether human genes are patentable is a topic likely to generate excitement and intrigue from many.


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December 6th, 2012 at 8:34 pm

Video Games and Intellectual Property: Chrono Trigger Fan Remakes and Copyright Protection

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Before I start, I’d like to state that I realize that this topic has been beaten to death, but I’d like this to be a continuing series of posts on intellectual property issues in the video game community, and this situation is fairly straightforward and serves as a good introduction to the major issues at hand.

I’ll admit, Chrono Trigger is a very good game. I prefer Chrono Cross personally, but I understand why so many people consider it among the greatest games of all time. The story is lighthearted with some mature undertones, the battle system is simple to learn but has a surprising amount of depth, and the concept of traveling to different periods of time and having your actions affect future timelines was unique and well executed.

It should come as no surprise, then, that the strong fanbase would want more. Chrono Cross took a rather different approach to the series and was released over 10 years ago, and all fans have had since then are a PS1 port plagued with loading time issues and a DS remake that was well received but didn’t satiate long time fans. Long story short, they wanted a new Chrono game, one with updated graphics and a better connection to (or retcon of) Chrono Cross.

Several fan remakes started popping up starting from the early 2000s, but the most notable ones were Chrono Resurrection, Chrono Trigger: Crimson Echoes, and Chrono Trigger HD. Resurrection was a remake of the original game while Crimson Echoes was an interquel that tied together Chrono Trigger and Chrono Cross. These first two were notable in that Square Enix, owner of the copyrights and trademarks related to Chrono Trigger, sent cease-and-desist letters to the developers of these games claiming trademark and copyright infringement.

Square Enix’s arguments were very strong. As derivative works, 17 U.S.C. § 106 gives the original copyright holders the exclusive rights to prepare such works, so the fans had to seek permission before creating work with Square Enix’s copyrights. While the developers might have claimed fair use under 17 U.S.C. § 107, particularly because they would release the games for free, the preemption of sales that Square Enix would supposedly get by making its own remake is enough of an effect on the potential market to bar the fair use defense. Square Enix had them dead to rights.

Chrono Trigger HD, another attempt at a straight remake using the Unreal engine, is taking a different approach. They have no website and they will not include their names in the credits, hoping that Square Enix will not be able to find out who is infringing their IP. This logic, however, is deeply flawed. As has been noted by Mark Methenitisa fellow Greek IP lawyer?!—and Zack Bastian, just because they can’t find the original developers doesn’t mean that the game is any less illegal. They’ll use their resources to take down whatever public disclosures they can find, and if the developers want anyone to play the game outside their torrent circle, they’ll probably have to disclose at some point.

Go figure, the law student likes IP protection. Seriously, though, there are a lot of game IP that fans want revisited. Xenogears deserves a proper disc 2. A third Chrono game would sell like crazy. The movement for a Final Fantasy VII remake is stronger than ever. If The Last Story and Mass Effect 3’s Extended Cut have taught us anything, it’s that game companies are listening to fans. If Microsoft is willing to address their Xbox Live harassment issues because of fan promotion of this web video, Square Enix may be willing to hear out Chrono Trigger fans. Infringing their IP is only going to discourage them from creating new content, which is why we have IP protection in the first place.

Of course, this brings up the question of user-generated content in general, such as the mod kits in the Elder Scrolls games, map editors in Starcraft, and level creators in LittleBigPlanet. DayZ is an interesting case as well, being a mod of Arma 2 that eventually became a retail game. But that’s another post.

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September 27th, 2012 at 11:12 am

Paramount Pictures Speaks to Michigan Law Students about Online Piracy, Cyberlockers

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Last month, copyright students at Michigan Law were able to engage in a Q&A after a presentation from Alfred Perry, the VP of Worldwide Content Protection at Paramount Pictures. The topic? SOPA, PIPA, and the legal issues that surround file-sharing websites, like the recently indicted Megaupload.

Many students were eager to engage in a discussion with a representative of the movie industry, especially given the current debate over the Stop Online Piracy Act, and the possibility of future copyright legislation that would address online infringement. As a copyright student myself, I was anxious to hear what a representative of a company that advocates and supports these recent legislative initiatives had to say.

During the presentation, I was most impressed by the emphasis that was put on the problem with cyberlockers- online file storage providers. While they have completely legitimate uses such as storing documents, and sharing files, some users post pirated content of movies or TV shows. It seems that major media companies are targeting these sites- Mr. Perry said that “We continue to make criminal referrals.” Paramount Pictures stated that their content is not being protected adequately by the current laws. However, these cyberlockers are bound by the Digital Millennium Copyright Act, and are obligated to take down infringing content when given notice that it has been posted.

During the presentation, five cyberlockers were identified as “rogue” sites- Fileserve, MediaFire, Wupload, Putlocker, and Depositfiles. In a later email, Mr. Perry explained that “My use of the term ‘rogue’ was meant to designate those cyberlockers which would fall within the definition of a foreign infringing site.” However, MediaFire is a cyberlocker that is located in Texas.  They recently released a press release that addressed these claims. The owner, Tom Landridge said  “MediaFire continues to cooperate fully with the MPAA, RIAA, and various other organizations who work to identify and prohibit the distribution of copyrighted content. We have a variety of advanced automated systems designed to detect violations of our Terms of Service and automatically warn and terminate users.”

It appears that the war between media companies and cyberlockers is only just beginning. Although it is apparent that studios do not like these companies, there doesn’t seem to be a ready solution. Cyberlockers provide a legitimate service, used by many for legitimate purposes. The recent firestorm has caused two sites- Wupload and FireServe to become backup sites, disabling all fire-sharing to avoid the risk of criminal prosecution. While media companies might rejoice, I believe this points to a bigger problem- the media industry business model. Mr. Perry in an e-mail to me, stated “Looking forward, why would anyone invest in an innovative new distribution service if they believed that there would be no legal protection for their fantastic new platform, forcing it to compete with rogue sites that pirate all of their product?”. However, this belies the point that these cyberlockers are innovative- it is the reason they receive 41 billion page views a year. While there is no easy solution, and stolen content is a problem, it might be in the best interest of both cyberlockers and the entertainment industry to work together moving forward- sparing cyberlockers the fear of criminal prosecution, and innovating the media distribution business model.

Sony’s $8M Settlement and the Future of Digital Royalties

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Wrapping up six years of heated litigation, Sony offered an $8 million settlement this week in a class action lawsuit led by The Allman Brothers and Cheap Trick, accusing Sony of underpaying the bands’ digital record royalties.  Originally filed back in 2006, this class action forged the way for numerous artists to sue their labels for counting digital downloads as “sales” rather than “licenses.”  Last year, Eminem’s producers won a similar suit against Universal.  See F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010).  At the crux of such disputes lies the discrepancy between sale and license royalty rates: royalties for phonorecord sales typically fall between 8 and 20 percent, whereas a 50 percent royalty rate remains the industry standard for licenses.

As the Amended Class Action Complaint alleges, Sony’s failure to properly account to Plaintiffs for recording royalties of their recordings sold by “Music Download Providers” and “Ringtone Providers” through digital distribution has resulted in a gross underpayment of royalties to Plaintiffs.  See Allman v. Sony BMG Music Entm’t, No. 06-CV-3252 (GBD), 2008 WL 2307598 (S.D.N.Y. July 10, 2006).  By treating digital downloads like traditional record sales, Sony has successfully triggered a lower-paying royalty deal for its artists.  The Complaint charts out the differences between the two royalty options, highlighting that of the 99 cents charged to the consumer by Apple for each download through iTunes, Plaintiffs receive approximately 4.25 cents.  Similarly, from each $1 to $1.50 that Sony receives for a ringtone, Plaintiffs receive only 8.3 cents.  Plaintiffs argue that these numbers stand in stark contrast to the revenue Plaintiffs would receive if Sony licensed its sound recordings to Music Download Providers, since the artists’ Recording Agreement requires Sony to pay its artists 50% of all net licensing receipts received, when such sound recordings have been licensed to third parties.

However, in a brief and pointed opinion, the district court judge determined based on the contractual language that there is “no basis from which it can reasonably be inferred that payment pursuant to the master recording lease provision is applicable.”  Allman v. Sony BMG Music Entm’t, 06-CV-3252 (GBD), 2008 WL 2477465, at *1 (S.D.N.Y. June 18, 2008).  Since the master recording lease provision (which would entitle Plaintiffs to 50% of net receipts as a royalty) necessarily required proof that the master recordings were in fact leased to the Music Download Providers – proof not provided by Plaintiffs – that provision did not apply.  Instead, the district court held that the royalty provisions applicable to “Sales of Phonograph Records” reigned supreme, which included master recordings sold by Defendant or its licensees through normal retail channels, such as iTunes.  Since the parties stipulated that digital music files fell within the contractual definition of “phonograph records,” the iTunes downloads constituted sales of the digital sound recordings rather than licenses and thus justified the lower artist royalty rate.

Now, almost four years later, the Settlement directs that $7.65 million (less attorneys’ fees) will go to class members who sold at least 28,500 downloads on iTunes, while the remaining $300,000 will be paid to class members equally, per capita, with sales fewer than 28,500 total downloads.

Despite being premised primarily on contractual interpretation, Allman nonetheless raises timely, compelling questions pertaining to the disconnect between emerging digital technologies and frequently outdated contracts.  For example, one background explanation for the prevailing lower royalty rate in Allman may be that the lead Plaintiffs’ record contracts came into existence before the advent of digital music sales online, and did not adequately predict or account for future methods of artist payments.  In any case, the district court’s opinion makes clear that “the emergence of a new era of digital sound recordings does not afford plaintiffs the right, under the guise of contract interpretation, to rewrite the terms of the contracts in order to secure a more favorable, or what they consider to be more equitable, royalty formula.”  See Allman, 2008 WL 2477465, at *2.  Depending on the exact wording of other artist contracts, then, we can expect to see an increase in this type of litigation.

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March 22nd, 2012 at 1:33 pm

Bollywood & Hollywood: Opportunity for Collaboration through Reform of Policies Governing Copyright and Plagiarism

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The Bollywood film industry has been using ideas from foreign films since its inception. This “borrowing” has ranged from melodies for background scores to entire plot summaries and even translated dialogues. However, with the advent of technology and the increasing popularity of Bollywood cinema in the United States, we are beginning to see American film producers “borrowing” Bollywood film elements as well. Prominent examples are the use of the Bollywood song “Chamma Chamma” from the Hindi movie China Gate as a dance number in Moulin Rouge; the use of the Bollywood song “Chaiyya Chaiyya” as the title song for the Hollywood movie Inside Man; and the Black Eyed Peas sampling of songs from both Don and Apradh on the track “Don’t Phunk with my Heart”.

The media exchange between both nations is increasing as Bollywood actors and directors are entering the Hollywood industry while Hollywood filmmakers and production companies are trying to break into the Bollywood media market. As the cross-border media sharing intensifies, the need for answers regarding legal implications for both nations increases. While both countries have copyright statutes and are signatories to numerous treaties regarding intellectual property rights there is a lack of enforcement of these provisions in the Indian courts.

There is a great need for international collaboration between the United States and Indian governments to work towards a solution to this legal issue. As evidenced by the Indian High Court’s ruling against Will Smith’s production company’s suit against the Bollywood producers who re-made Hitch without permission, the two governments have vastly different approaches to intellectual property rights enforcement. Without some way for Hollywood and Bollywood film producers to compromise and reach a mutual understanding regarding sampling each other’s productions, the creativity that could be fostered by increased communication is hindered. Furthermore, without some sort of reprimand for producers who abuse their “sampling” privileges and effectively steal whole works of others, relations between these two film industry giants will be frayed.

For further reading on this topic, check out this, this, & this.


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March 20th, 2012 at 2:54 pm