Intellectual Property Advice from Industry Experts

Podcast:

Derivative Work podcast by Doug Lichtman from the Intellectual Property Colloquium

http://www.ipcolloquium.com/

There are many legal issues that arise when an individual creates a derivative work from another copyrighted piece of intellectual property. This blog describes the unauthorized creation of an encyclopedia of Harry Potter by a company known as RDR books. The problem here is that original material was actually copied from the original Harry Potter series. This led to a lawsuit filed from Warner against RDR. Due to the fact that the encyclopedia basically copied a lot of original works from Harry Potter, led to copyright infringement. If the work created was original and not directly from the original Harry Potter, the work may not have violated copyrights and have been considered a derivative work.

Podcast:

Copyright termination by Doug Lichtman from the Intellectual Property Colloquium

http://www.ipcolloquium.com/

The original copyright act that allowed authors the rights to their works for a period of 14 to 28 years, depending on the law of the time, and then the author could renew the copyright for another 14 to 28 years. However, if the author sold the copyright or the rights to the copyrighted work, when it came time to renew the copyright, the rights would come back to the original author instead of the new owner of the rights or copyright. Thus, copyright transfer deals started happening in both copyright periods so that the new owner would have the renewal in their own name. However, the copyright termination right allows authors to reclaim their original copyright after 35 years of the copyright transfer. This is dangerous because if you are paying a lot for the rights to a copyrighted work, your license or ownership can be terminated and rights be transferred back to the original owner.

Podcast:

Entertainment Law Update Episode 13  - copyrights, trademarks, fair use – Gordon P. Firemark, Esq.

http://www.entertainmentlawupdate.com/

In this podcast one of the many cases discussed was a case of Jay-Z v. Ahab Joseph Nafal. Mr. Nafal claimed copyright infringement on one of Jay-Z’s hit singles, “Big Pimpin”, claiming that the hit single from Jay-Z violated one of his Egyptian compositions known as, “Khosara Khosara”, which was written by Baligh Hamdi. Apparently Nafal tried to argue that he acquired the rights to the song through a third party, which got the rights from a relative of Hamdi. After a little research into the claim, it turns out Nafal never got exclusive rights to the Egyptian composition and therefore the judge threw the case out, claiming Nafal had no rights to sue over a composition that he did not own a copyright for. Moral of this case: Make sure you are getting rights to a composition from the correct copyright owner, or purchasing the copyright from the correct owner.

Court Cases in the Music Industry

In today’s music industry, there are a multitude of legal issues that arise due to intellectual property complications and copyright infringement. It is not uncommon to see hundreds or even thousands of court cases a year in the entertainment industry. Let’s take a better look at some of these cases that exist in this industry.

First I would like to take a look at the case of copyright infringement against Jammie Thomas-Rasset, a resident of Brainard, Minnesota. Ms. Thomas-Rasset was found by the court to be liable for copyright infringement due to downloading 24 songs illegally through the Kazaa file sharing network. Initially, a ridiculously outrageous amount was sought per downloaded song, in the amount of $83,000 per song, bringing her grand total of infringement for 24 songs to $1.92 million dollars.
“In his ruling, Judge Davis found the initial award of $1.92 million dollars in favor of the plaintiffs "monstrous and shocking," despite the acknowledged need for deterrence of the illegal downloading and sharing of music.” T. Roth, 2011. Just as the honorable Judge Davis found this to be a shocking amount, I too believe that for this amount to even be considered in the first place is absurd. This poor mother of four would be working for the rest of her life and still not have that amount paid off. After the second go around of this case, Judge Davis shaved the award amount granted to the RIAA to $54,000. No where near as bad as $1.92 million, yet still this is enough to ruin a persons life and send a family to live on the streets.

Another case similar to the last case of Ms. Thomas-Rasset, involves a Ms. Whitney Harper, who had shared some music on her families computer back when she was only a teenager. After the merciless RIAA slapped her with a lawsuit, “Harper claimed that she was an “innocent infringer” who went straight when she learned about copyright law, and that she had thought P2P use was basically like (legal) Internet radio.” N. Anderson, 2011. At first, Ms. Harper was lucky enough to get a reduced liability on each song at $200 per song, instead of the usual minimum of $750. However, “An appeals court overturned the ruling; as it pointed out, copyright law currently states that one can’t claim “innocence” so long as a copyright notice was printed on the physical “phonorecord.” But because Harper had downloaded on computers and never seen the CD version of her songs, she argued that the provision was patently unfair and appealed to the Supreme Court.” N. Anderson, 2011. Despite her attempt to claim her defense of “innocent infringer”, the justices of the Supreme Court refused to hear the case because “This provision was adopted in 1988, well before digital music files became available on the Internet…. But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that §402(d) does not apply. In such a case, the question would simply be whether the infringer ‘was… aware and had… reason to believe,’ that the downloading was illegal.” N. Anderson, 2011. Unfortunately for Ms. Harper, she is currently stuck with 37 songs at $750 each, or a grand total of $27,750 owed for her copyright infringement.

By looks of the last two cases it seems that the music industry is no longer playing around with individuals and copyright infringement. As a matter of fact, let’s take a look at a bigger case, involving copyright infringement by an Australian ISP’s users, and how music studios actually attempted to hold the ISP responsible for their users actions.

The Music studios that came together to embark on this lawsuit consisted of such companies such as Walt Disney Co., Paramount Pictures, 20^th Century Fox, amongst 30 other various studios. The argument was that there has been tens of thousands of copyright infringements going on through this particular ISP, known as iiNet. However, iiNet argued back that they cannot be held responsible for the actions of their users, and in no way has the company encouraged any type of infringement actions by their users. If this were the case, and the ISP could be held responsible for the actions of their users, that means they would have to watch every users actions on the internet, however, “as of now Australian ISPs will not be required to actively police their users.” J. Korba, 2011. This case to be seems to be a waste of time, and I believe that music companies are going too far when they are trying to have an ISP be held responsible for copyright infringement done by their users. If the music companies were to of win this case, that would of called for ISP’s to be shaken and watch every action of every user to ensure that this could not happen to them. That to me is taking it a bit too far and would cause huge upsets. Thankfully, the ISP cannot be held responsible, and although I understand music companies want their money, they will have to get it by going through each individual copyright infringement case, one person at a time, ruining one life at a time.

References:

Tanya Roth, January 26, 2010. Copyright the Songs: Court Lowers Award for Illegal Downloads. Blogs.findlaw.com. Retrieved on Saturday March 5^th, 2011 from:

http://blogs.findlaw.com/decided/2010/01/i-copyright-the-songs-court-lowers-award-for-illegal-downloads.html

Nate Anderson, January 2^nd, 2011. Supreme Court refuses innocent infringement P2P case. C4sif.org Retrieved on Saturday March 5^th, 2011 from:

http://c4sif.org/2010/12/supreme-court-refuses-innocent-infringement-p2p-case/

Jack Korba, February 27, 2011. Music Studios Lose Copyright Case Against Australian Company. Ipbrief.net. Retrieved on Saturday March 5^th, 2011 from:

http://www.ipbrief.net/2011/02/27/music-studios-lose-copyright-case-against-australian-company/