The Washington Post reports that the photograph in Donald Trump Jr.’s now-infamous “Skittles tweet” has been removed over copyright infringement concerns. On September 19, 2016, in what appears to be a sacchariferous twist on former Vice President Dick Cheney’s “One Percent Doctrine,” the junior Donald tweeted (heedless of both political correctness and grammatical standards), “If I had a bowl of Skittles and I told you just three would kill you. Would you take a handful? That’s our Syrian refugee problem.” To both illustrate the point and make the choice more difficult for Skittle-loving Americans, the tweet included an enticing, full-color photograph of a delicious-looking bowl of SKITTLES® brand fruit-flavored candies. The original tweet can be seen here.
Trump Jr.’s tweet was ostensibly intended to advance his father’s anti-Syrian refugee argument, and as everyone knows, a picture is worth a thousand words (or at least more than twenty-six). Unfortunately for Trump Jr. (and, by extension, anyone with an equivalently expansive sense of entitlement), he neglected to secure, or even request, a license from the photograph’s copyright holder, British photographer David Kittos. Upon discovering the misappropriation of his intellectual property by Trump Jr., Kittos, himself a refugee who left Cyprus at the age of six, promptly filed a DMCA Takedown Notice under the Digital Millennium Copyright Act, which allows copyright holders to compel service providers like Twitter to remove infringing content hosted on their services. As of this writing, the remainder of Trump Jr.’s tweet still stands, though it is but a candy-coated shell of its former self.
In addition to raising the question of why the son of an alleged billionaire would not simply purchase a stock photograph (and the services of a proofreader) for such occasions (instead of disregarding the need for a license as if it were an obligation to pay federal income tax), this incident also illustrates the perils of assuming that content found on the Internet is free for the taking. The safer assumption is that you need a written license, and perhaps a copyright attorney, in order to use any content that you see on the web. Caveat Trumptor! From The Washington Post.
Yes, it’s still a thing. Ars Technica reports that, as the latest twist in an ongoing legal drama, a federal judge in San Francisco has rejected the argument that a monkey can own a copyright under current U.S. law. In a hearing this week, U.S. District Judge William Orrick stated that the question of whether non-human animals can own copyrights “is an issue for Congress and the president,” adding that “[i]f they think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.” Calling the primate plaintiff’s argument a “stretch,” the judge indicated that he intended to dismiss the case in an upcoming order. The judge’s decision is a setback for the monkey’s human representatives, the People for the Ethical Treatment of Animals (“PETA”), who brought the suit on the monkey’s behalf and intended that any proceeds from the suit would be used to help preserve the endangered monkey’s Indonesian habitat.
For those who have not been following this gripping saga as closely as you should have been (see earlier posts on this subject here, here, and here), the tale began in 2011 when a macaque monkey on the Indonesian island of Sulawesi snapped a series of selfies with a camera that had been set up by British wildlife photographer David Slater. Slater then filed for U.S. copyright protection for the images, which had quickly gone viral on the Internet. The U.S. Copyright Office refused registration on the basis that copyright protection requires human authorship of the work(s), and in 2014 amended its published guidelines to specifically state that “[a] photograph taken by a monkey” is non-registrable. The subsequent PETA lawsuit against Slater, filed in September 2015, is based on the argument that the law does not specifically state that copyrights may only be owned by humans, and therefore does not preclude animal ownership. Judge Orrick’s rejection of this argument is a blow not only to PETA and its monkey plaintiff, but also to the noble cause of animal intellectual property rights in general. The decision will likely send shockwaves though the animal community, and will no doubt stifle animal creativity and reduce the already meager economic incentives that animals have to create, sell, license, publicly perform, and otherwise exploit original works of authorship. Apparently, for animals, the law of the jungle prevails. Read the article here. From Ars Technica.
The New York Daily News reports that singer Justin Timberlake’s record label, Universal Music Group (“UMG”), is being sued by two members of the 1970s R&B group Sly, Slick & Wicked for allegedly using vocal samples from their song “Sho ‘Nuff” in Timberlake’s 2013 hit “Suit & Tie” without permission. “[A]ccording to court documents obtained by the Daily News,” the plaintiffs claim that UMG paid for permission to sample the music from “Sho ‘Nuff,” but was never authorized to use samples of the vocals. The article does not reveal the specific relief requested in the lawsuit, or the amount of damages or royalties sought, but notes that the Grammy-winning “Suit & Tie” was “an enormous hit, selling more than 3 million copies while garnering nearly 100 million clicks on YouTube since its release in 2013.” Neither UMG nor Timberlake appear to have yet made any public statements regarding the suit. Read the article here, and compare "Suit & Tie" and "Sho 'Nuff" here and here. From the New York Daily News.
What Could Have Entered the Public Domain on January 1, 2016? Duke University’s Center for the Study of the Public Domain helpfully answers this question in the 2016 version of its annual report on the subject. January 1st of each year, known by normal human beings as New Year’s Day, is also known by copyright nerds as Public Domain Day, the day that creative works with expiring copyrights enter the public domain and can be freely used without permission. In an alternate universe where U.S. copyright protection had not been extended by Congress from its original 28-year term to the current term of the author’s life plus 70 years, many creative works of enormous cultural and historical significance would be entering the public domain today.
Books and plays such as Ian Fleming’s Goldfinger, Agatha Christie’s Cat Among the Pigeons, Lorraine Hansberry’s A Raisin in the Sun, E.R. Braithwaite’s To Sir, With Love, William Burroughs’s The Naked Lunch, Richard Condon’s The Manchurian Candidate, Cornelius Ryan’s The Longest Day, Gunter Grass’s The Tin Drum, Saul Bellow’s Henderson the Rain King, Robert Heinlein’s Starship Troopers, Walter Miller’s A Canticle for Leibowitz, and Strunk and White’s The Elements of Style would be freely available to students and teachers. Films and television shows like Ben-Hur, North by Northwest, Sleeping Beauty, Some Like It Hot, Suddenly Last Summer, Anatomy of a Murder, The Diary of Anne Frank, Rio Bravo, Journey to the Center of the Earth, The Twilight Zone, Rawhide, and Rocky and Bullwinkle could be shown, copied, archived, and edited into new works. Musical works such as Rodgers & Hammerstein’s The Sound of Music, Miles Davis’s Kind of Blue, Leiber & Stoller’s Love Potion No. 9, and Ray Charles’s What’d I Say could be performed, transcribed, adapted, reimagined, and freely enjoyed without a license. In the real world of U.S. copyright law, however, neither these nor any other copyrighted works will be entering the public domain this year, or next year, or the year after that. Under current law, no copyrighted works are slated to enter the public domain until 2019, and none of the titles named above will enter the public domain in the U.S. until 2055. Regardless of one’s views on the wisdom or propriety of our seemingly ever-lengthening copyright terms, the advocates and curators of our creative commons seem to have little to celebrate this Public Domain Day.
CNN Money reports that singer Taylor Swift has been hit with a $42 million copyright infringement lawsuit over her hit song “Shake It Off.” The plaintiff, Jessie Braham, whom the article characterizes as a “struggling out-of-work musician,” is claiming that Swift unlawfully copied the lyrics from his song “Haters Gone Hate,” which he copyrighted in 2013. Braham’s song features the lyrics “Haters gone hate, playas gone play. Watch out for them fakers, they'll fake you everyday,” while Swift’s lyrics are “The players gonna play, play, play, play, play. And the haters gonna hate, hate, hate, hate, hate. And the fakers gonna fake, fake, fake, fake, fake.” In addition to the $42 million in damages from Swift, Braham is also seeking to have his name added as a songwriter to “Shake It Off.”
The suit is newly filed, and has not yet been litigated. However, according to Michael Einhorn, “an expert witness who specializes in intellectual property cases… Swift's lawyers will have many defenses available to them.” In Einhorn’s estimation, “This case is going nowhere.” Whether or not Swift will be able to shake Braham off remains to be seen. From CNN Money.
U.S. copyright protection became available for motion pictures on August 24, 1912, and on September 12, 1912, the first motion picture registration was issued to Republic Film Company for the Pierce Kingsley film “Black Sheep’s Wool” (see an earlier post on this subject here).
39 years later, on September 12, 1951, Arthur Fisher was appointed the fifth Register of Copyrights. Fisher, a graduate of Harvard College and Harvard Law School, taught constitutional law at the University of Montana, was editor of a newspaper, partner in a Chicago law firm, and held various positions in government before joining the Copyright Office as associate register in 1946. An authority on both national and international copyright law, Fisher sought to expand the international protection of literary property, and led the drive that made the United States an adherent, for the first time, to a world-wide copyright agreement, the Universal Copyright Convention in 1955. Fisher obtained funding from Congress for a series of 34 studies of U.S. copyright law that examined the current law and comparable laws of foreign countries and international conventions, analyzed numerous issues, and suggested various solutions. Prepared under his direction, these studies provided the groundwork for the general revision of the U.S. law that ultimately resulted in the landmark Copyright Act of 1976. From the History of Copyright Timeline at the U.S. Copyright Office.
On September 9, 1886, the Berne Convention for the Protection of Literary and Artistic Works, the first multilateral international copyright treaty, was signed in Berne, Switzerland by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom. The United States was represented at the conference, but did not become a signatory until March 1, 1989, more than a century later, when the Berne Convention Implementation Act of 1988 was enacted. The Berne Convention, which to date has been joined by 167 countries, is one of two principal international copyright conventions, the other being the 1952 Universal Copyright Convention, which the U.S. joined in 1955. From the History of Copyright Timeline at the U.S. Copyright Office.
On September 1, 1971, George D. Cary was appointed the seventh Register of Copyrights, succeeding Abraham L. Kaminstein. He began his service in the U.S. Copyright Office as an attorney in April 1947, and was promoted to assistant chief of the Examining Division, principal legal advisor, and general counsel. Cary became deputy Register in 1961, and served for 10 years before his appointment as Register. From the History of Copyright Timeline at the U.S. Copyright Office.
On August 31, 1876, French sculptor Frédéric Auguste Bartholdi was issued U.S. Copyright Registration No. 9939-G for the “Statue of American Independence” (later known as “Liberty Enlightening the World,” or the “Statue of Liberty”), depositing a photo model and artistic rendering of how the statue was to appear against the New York skyline. Bartholdi also secured concurrent protection for the statue’s design under U.S. Design Patent No. D11023, issued February 18, 1879. From the History of Copyright Timeline at the U.S. Copyright Office.
On August 24, 1912, U.S. copyright protection was extended to motion pictures. Prior to this, motion pictures could only be registered as a series of still photographs. “Edison Kinetoscopic Record of a Sneeze” (also known as “Fred Ott’s Sneeze”), a short, sternutational film of one of Thomas Edison’s assistants registered in 1894, is the oldest surviving motion picture deposited as still photographs. From the History of Copyright Timeline at the U.S. Copyright Office.
On August 18, 1787, founding father and future president James Madison submitted a provision to the framers of the U.S. Constitution to “secure to literary authors their copyrights for a limited time.” Adopted in amended form as Article I, Section 8, Clause 8 of the Constitution, this language became known as the Copyright Clause, and provides the constitutional basis of U.S. copyright law.
69 years later, on August 18, 1856, copyright protection was extended to dramatic compositions, including, for the first time, the right of public performance. From the History of Copyright Timeline at the U.S. Copyright Office.
On August 7, 1994, Marybeth Peters was appointed the eleventh Register of Copyrights. She joined the U.S. Copyright Office staff in 1966 as a music examiner, and advanced to positions at all levels of the Office, including acting general counsel, policy planning advisor, chief of the Examining Division, chief of the Information and Reference Division, and attorney-advisor. Peters was instrumental in the consideration and enactment of most of the 40 amendments to Title 17 that were enacted during her time as Register, and her 16-year tenure as Register was exceeded in length only by the 33-year stint of the first Register, Thorvald Solberg. From the History of Copyright Timeline at the U.S. Copyright Office.
On August 1, 1936, Clement Lincoln Bouvé was appointed the third Register of Copyrights. Bouvé, who served from 1936 to 1943, was the first lawyer to serve as Register. Among the many notable accomplishments of his tenure was the creation of the copyright card catalog, 1938-1945, the first U.S. Copyright Office catalog to combine into one alphabet all of the entries representing all authors, claimants, and titles for all classes of registered works. From the History of Copyright Timeline at the U.S. Copyright Office.
On July 22, 1897, Boston book dealer and noted copyright expert Thorvald Solberg was appointed the first Register of Copyrights for the newly-created U.S. Copyright Office. Appointed by John Russell Young, the Librarian of Congress, Solberg served as Register for 33 years, grew the Office from a few clerks to a professional staff of over 100 people, and was an influential voice in the policy and passage of the Copyright Act of 1909. From the History of Copyright Timeline at the U.S. Copyright Office.
On July 13, 1914, President Woodrow Wilson proclaimed the adherence of the United States to the Convention on Literary and Artistic Copyright (the “Buenos Aires Convention”), which was first signed in Buenos Aires, Argentina in 1910 by the U.S. and 19 Central and South American countries. From the History of Copyright Timeline at the U.S. Copyright Office.
104 years later, on July 10, 1974, the United States joined the 1971 revision of the Universal Copyright Convention (“UCC”). Originally adopted in Geneva, Switzerland in 1952, the UCC is one of two principal international copyright conventions, the other being the Berne Convention for the Protection of Literary and Artistic Works. The U.S. has been a member of the UCC since 1955, and a member of the Berne Convention since 1989. From the History of Copyright Timeline at the U.S. Copyright Office.
On July 8, 1870, the second general revision of U.S. copyright law centralized copyright activities, including registration and deposit, in the Library of Congress. It also extended protection to works of art, gave authors the right to create their own derivative works, including translations and dramatizations, and began the indexing of registration records. From the History of Copyright Timeline at the U.S. Copyright Office.