You Don’t Owwwwwwn Me!

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Selfies. Everywhere. They’re your friends’ updates; proof of travels and adventures; they even come on sticks. For one photographer, selfies also imply a giant mess of legal battles.

Although many of us consider our pets to be members of the family, the law unfortunately sees things differently. Animals, in general, are not of equal footing with respect to legal rights. Stemming from the notion that legal relationships ‘exist between persons’ and not between ‘persons and things’ or between ‘things and things,’ animal rights activists have long-fought an uphill battle to extend certain rights and protections to our furry friends. If you were to ask PETA (People for the Ethical Treatment of Animals), this recognition extends even to ownership of copyrights.

In 2011, photographer and conservationist David Slater sought to increase awareness of endangered macaque monkeys in Indonesia. After slowly earning the animals’ trust, he was able to get the shot of a lifetime – or rather, Naruto the monkey did… And that’s where things start to get tricky. Wikimedia used the image without crediting Slater, arguing Naruto, not Slater, took the picture; and, because monkeys can’t own copyrights, the image is therefore within the public domain. When Slater later published a book with this image, PETA – piggy-backing off of Wikimedia’s argument – sued Slater on the grounds that “while the claim of authorship by species other than homo sapiens may be novel, ‘authorship’ under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.”

The case was dismissed, finding that monkeys cant own copyrights. PETA appealed, raging the battle forward, while nearly bankrupting Slater. Finally, however, a settlement agreement has been reached. By the parties’ terms, Slater will donate a fifth of future revenue from the images to charities dedicated to protecting crested macaques in Indonesia.

So, what did we really learn here?

I have no idea. But, at least for now, that bone you gave your dog is still technically yours.

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Stairway to Copyright Infringement

4b8c3526da3e190eb0e512c41020f0d87862cace462e81fa2130ef80c4f675cdOne of the most angelic songs of the Classic Rock era, “Stairway to Heaven” by Led Zeppelin, is currently under fire for alleged copyright infringement (or, ‘stealing their tunes, dude’ depending which generation you belong to).

The claim has been brought by the heirs of Randy Craig Wolfe (aka “Randy California”) from the 60’s band, “Spirit”. Never heard of them? Well, perhaps their counter-song “Taurus” was never as popular, but according to the allegations, “to a reasonable observer, the iconic notes, melody, chord progression, structure, tempo, instrumentation, and feel of ‘Stairway to Heaven’ sound almost identical to Plaintiff’s protected expression in ‘Taurus.'”

You can listen to “Taurus” by Spirit (1968) here.
Rusty on your Zep? You can compare this to “Stairway” (1971) for yourself here.

“Ooh, it makes me wonder
Ooh, it really makes me wonder”

It really does…

Randy California, the guitarist for Spirit and a protege of Jimi Hendrix, began his band while still only a teenager – helping to lead the 1960’s psychedelic rock movement. Moreover, as stated in the complaint, Spirit even toured with Led Zeppelin the same year “Taurus” was released.

There’s a sign on the wall
But she wants to be sure
Cause you know sometimes words have two meanings

That’s a pretty big sign. But despite this history together, Robert Plant of Led Zeppelin defends his song – written 3 years later – as an original work. Although he ‘just found’ a copy of Spirit’s self-titled album in his record collection to see what this was all about, Plant states listening to the song in 2014 was in fact the first time he’d heard it.

Unfortunately for Led Zeppelin, this is far from the first copyright claim. Below is a chart (as pulled from the complaint) of the many infringement claims brought against the band to date:

Infringement

Yes, there are two paths you can go by, but in the long run
There’s still time to change the road you’re on.

Sorry, Robert, but you’re out of time for change. Thanks to the recent Supreme Court case of Petrella v. MGM, the statute of limitations for such a claim resets every instance the song is exploited – known as the “separate accrual theory”:

“… when a defendant commits successive violations, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed,the infringer commits a new wrong. Each wrong gives rise to a discrete ‘claim’ that ‘accrue[s]’ at the time the wrong occurs.”

So, while the song may be over 40 years old, the plaintiffs’ action is still timely – and as such, are seeking: $150,000 per incident of infringement, punitive damages, equitable relief (including impoundment, destruction, and the halting of sales of infringing material), and for the U.S. Copyright Office to include Randy Craig Wolfe as a writer of “Stairway to Heaven”.

Copy-right? Wrong!

Loser, Loser, Chicken Dinner… 

Food Cat

Which of these recipes can you protect by copyright?

(a) Fried chicken, tomato, avocado, mayonnaise;

(b) Roasted turkey breast, bacon, avocado, aioli;

(c) Fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun; or

(d) None of the above.

If you answered (d), then you’re right on par with the 1st Circuit’s Court of Appeals, and its latest decision on the “Pechu Sandwich” (c above)(pun!).

Norberto Colón Lorenzana is a former employee and food creator for the South American Restaurant Corporation (“SARCO”), a franchisee and operator of Church’s Chicken restaurants in Puerto Rico. Meet “his” creation – the Pecho Sandwich:

Pechu Sandwich

Going on sale in the early 1990’s, this “fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun” quickly became a hit. So much so, that after SARCO obtained a trademark on the name, Lorenzana thought he was due more than a pat on the back… like, say, a percentage of the profits from the sandwich he allegedly “authored” (approximated to be ~$10M).

Generally, copyright law protects “fixed” expressions – those that can be set in tangible form. These include:

  1. Literary works
  2. Musical works, including any accompanying words
  3. Dramatic works, including any accompanying music
  4. Pantomimes and choreographic works
  5. Pictorial, graphic, and sculptural works
  6. Motion pictures and other audiovisual works
  7. Sound recordings
  8. Architectural works

Not on this list? Recipes – which have been long defined as non-tangible, common property, with no originality (also including things such as basic instructions on how to boil water, or the layout for standard calendars).

There is some debate, of course, as to the ‘expressive creative content’ of a recipe. Though some may argue it is nothing more than a list of ingredients, those chefs among us may disagree, seeing artistic expression in the combinations. For the 1st Circuit’s Court of Appeals, the absence of a recipe from the list of categories is specific enough evidence that they are not covered.

Because the ingredients themselves could not be protected by copyright, SARCO can maintain its trademark on the name “Pechu Sandwich” without paying any royalties. In other words, anyone can recreate the dish, you just can’t call it by that name.

The lesson here? If you really want to protect your ‘novel’ recipe, take a note from Coca Cola and lock it up good and tight!

Joke Thieves – Time to Pay Up?

Do You Like Fish Sticks?

Thieves EverywhereRemember that great joke you made online? You know, the one that had everyone “liking” it, and you thinking you were the next Steve Martin? Yea, that was pretty funny… so funny, it might get stolen?

It might seem far fetched to some, but there is a very real question mixed in here – – Do you own rights to that joke?

Well, thanks to Conan O’Brien’s latest law suit, I guess that may depend on just how funny (and original) you really are.

So, the law

Generally speaking, you do not have to file for a copyright to be protected. As soon as your work is created and fixed in a tangible form, it’s yours and yours alone. The exceptions to this – a.k.a. “public domain” works – include those that:

  • automatically enter the public domain upon creation, because they are not copyrightable:
    • Titles, names, short phrases and slogans, familiar symbols, numbers
    • Ideas and facts (e.g., the date the Bill of Rights was signed)
    • Processes and systems
    • Government works and documents
  • have been assigned to the public domain by their creators
  • have entered the public domain because the copyright on them has expired (i.e. life of the author + 70 years)

Sounds good, right? Perhaps.

Robert Kaseberg, a blogger and Twitter writer (and supposedly also a former writer for Jay Leno), is now suing Conan O’Brien for purportedly lifting jokes directly off of his Twitter account… for $600,000 in damages. Were they that funny? No, not really. But the action is indicative of a common trend – stealing and appropriating jokes (and other online content published in an age of ‘let me share every thought that crosses my mind’). And it raises the very real question of whether legal action can be brought for it.

The defense – sorry, you’re just not that original.

Sometimes it’s simply impossible to prove who really came up with the joke. With hundreds of staff writers and comedians scouring topical news stories every day, statistically there will be some overlap somewhere.

Hopefully the federal California court hearing this case has a better sense of humor.