IP Top 10 July: Copyright Infringement is a… Dark Horse
IP Top 10 July: Let’s begin!
July’s IP Top 10 is jam-packed with headlines to educate, provoke, and amuse. Taken from around the web we look at some of the stories that commanded the column inches this month.
Without further ado, here are 10 stories (in no particular order) that made our hit list.
Mediaset secure big victory against Dailymotion
Online piracy is big business. It may well be the most financially damaging form of copyright infringement for producers of media – whether that’s music, video entertainment or otherwise.
In a long standing battle within this arena, the Civil Court of Rome ordered online video sharing site Dailymotion to pay €5.5m to Mediaset inn compensation for the unauthorised distribution of 995 copyrighted videos.
The Judge concluded: “Dailymotion was entirely aware of the fact that most of the material distributed on its platform was covered by copyright”.
This was the first of seven trials involving Dailymotion, which Mediaset believe will result in a total damages exposure of €200m.
The interesting point in this example is the consolidation of national and EU jurisprudence in protecting with the work of publishers.
Furthermore, the burden of proof was placed on the defendant and not the complainant, as they were the only ones able to explain how the platform worked.
“Dark Horse” stole from “Joyful Noise”
A long standing case of alleged copyright infringement has drawn to a close with a California judge ruling that Katy Perry’s 2013 hit “Dark Horse” was plagiarised from a Christian rap song called “Joyful Noise”.
“Joyful Noise” written by rapper Marcus Grey (aka “Flame”) had been found to contain highly similar elements in its “ostinato” and whilst the infringing parties had said that they had not heard the song before, the Judge ruled it’s exposure was high enough for this to be unlikely. See for yourself below.
The liable parties in this case were found to be not only the producers (i.e. those that created the beat in question) but all six song writers, including Perry herself and featured artist Juicy J.
Whilst Perry et al are likely to appeal the decision, which they view as an attack on freedom in song writing, in the meantime they are found to be liable for $2.78m in damages.
Comic book “Infinity Wars” rage on
The world of comic books has become a hot-bed of intellectual property disputes. Whether it’s unauthorised use of certain characters, or issues to do with artwork – there seem to be as many battles outside the panels as there are inside them.
In a long-standing case, owners of Horizon Comics Productions filed a copyright suit against Marvel Entertainment, on the basis that they alleged the “Iron Man 3” film posted copied one of their own original works (see below).
However, a New York federal judge issued a summary judgment victory for Marvel. They argued: “there is virtually no evidence in the record that shows any one of these individuals either would have seen the Caliban Drawing or would have been involved in the ‘Iron Man 3‘ poster design, let alone both.”
Furthermore commenting: “in contrast to Horizon’s virtually non-existent evidence of copying, Marvel has introduced unrebutted evidence showing its independent creation of the Iron Man 3 poster.”
GiGi Hadid wins her copyright case!
Paparazzi beware! GiGi Hadid is on the case.
In recent months, we’ve taken a close look at a case where GiGi Hadid was sued by a paparazzi photographer for unauthorised use of an image he captured of her, which she posted onto her Instagram.
The plaintiff, Xclusive-Lee Inc. was rebutted by Hadid who suggested that her use of the image constituted fair use, as she herself had contributed to the photo, through her pose and appearance.
And she won!
However, it was not on the grounds which Hadid sought, rather that Xclusive-Lee “does not allege that it had been formally granted a copyright in the photograph [of Hadid] from the Copyright Office at the time it filed the complaint in this case.”
As such, it remains to be seen whether the co-authorship point within fair use could be successful in similar cases.
Happy Birthday… copyright (as we know it)!
July 16th was the 10th birthday of the Court of Justice of the European Union (CJEU) judgment – Infopaq International A/S v Danske Forening  – which changed the course of EU Copyright law.
Much has changed in subsequent years, but the decision established the notion of “reproduction in part”, in relation to use of short newspaper extracts without a license.
This and other changes would, in essence, result in a paradigm shift in copyright ushering in what could be seen as an entirely new era as what pertains to originality in new works.
“Little Trees” a big problem for Ryanair
Every month there is one case which, give a thousand guesses you would never be able to predict.
This month it’s Ryanair being sued by the manufacturer of the small tree shaped air fresheners you see in cars and trucks.
This graphic and shape is a registered trade mark of the air freshener company – but was found to be used by Ryanair for its car rental service and communications surrounding it.
Upon acknowledgement, Ryanair has ceased use of the graphic and states that it does not intend to continue further use.
However, upon the insistence of the German company, a trade of papers will occur and the case will be revisited later this year.
Could the word “Liverpool” become the trade mark of the year?
After winning the Champion’s League last season, Liverpool FC will be looking to consolidate their successes this year, on and off the pitch.
This includes an attempt to trademark the name “Liverpool” to protect their licensing revenue stream.
Whilst it is a mark with potentially wide scope – it is not without precedent.
They are limiting the specification, however, so that it only covers the context of football products and services – with revenue generated from licensing being reinvested into the club.
Andy Warhol wins copyright case from beyond the grave
Certain creative institutions remain big players, even when their proponents have left this mortal coil.
Photographer Lynn Goldsmith lost a case against the Andy Warhol foundation – as she alleged the pop art impresario had used one of her photos in a silkscreen series depicting the Purple One, Prince.
His Honour Judge John G. Koetl ruled: “each Prince series work is immediately recognisable as a ‘Warhol’ rather than as a photograph of Prince – in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognisable as ‘Warhols’, not as realistic photographs of those persons.”
Despite this strong statement from the Judge, Goldsmith seeks to continue her battle.
You can choose your own lawyers, not your opponents
In a remarkable case this month, His Honour Judge Hacon dismissed an application to injunct Virtuoso Legal from acting for Product Specialities Inc. in their defence to a registered design right infringement claim brought by Glencairn IP Holdings Ltd.
Glencairn sustained that Virtuoso Legal couldn’t act for Product Specialities on the basis that Virtuoso Legal’s London team had previously acted for Dartington Crystal on an earlier similar set of proceedings brought by Glencairn – resulting in a confidential settlement.
This was remarkable in the sense that typically cases around so-called “Chinese walls” and conflict in law firms occur when a firm has previously acted for a client – and therefore cannot act against them. In this case, Virtuoso Legal had only ever acted against the claimant.
HHJ Hacon ruled that the possibility of any confidential information being passed to the Product Specialities team was “very low“, as Virtuoso Legal had an effective barrier in place.
Ai Weiwei wins case against Volkswagen distributor
Chinese artist Ai Weiwei has won a copyright infringement claim against a Volkswagen distributor in Denmark.
He complained that his artwork “Soleil Levant” was used, without permission, in an advertisement. This artwork was displayed in Copenhagen and consisted of 3,500 life jackets displayed in the windows of the Kunsthal Chalottenborg.
The Danish court ruled in favour of the Chinese artist, awarding close to $250,000 for unlawful use of the artwork in print advertising and other damages.
IP Top 10 July: that’s it!
And that draws a close to this month’s IP Top 10.
Special thanks again to Marina Forment for researching these stories for us.
We will see you again next month!
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IP Top 10 July: Copyright Infringement is a… Dark Horse was written by Dr. Martin Douglas Hendry