Category Archives: Law and Policy

Resource List: Copyright and COVID-19

Posted April 1, 2020

We’ve collected resources to answer questions that you might have about fair use, access to educational materials, and temporary changes to Copyright Office operations during the COVID-19 outbreak. We’ll continue to add to this resource list as relevant resources are released; please check back often.

Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research

A group of library copyright specialists recently released a Public Statement on Fair Use & Emergency Remote Teaching & Research to provide clarity for U.S. colleges and universities about how copyright law applies to remote teaching and research in the wake of the COVID-19 outbreak. In response to concerns that copyright may pose impediments to a rapid shift to remote instruction—or conversely, that copyright is not relevant—the Statement authors review how fair use and the Digital Millennium Copyright Act (“DMCA”) apply to remote teaching. As they conclude, “[w]hile legal obligations do not automatically dissolve in the face of a public health crisis, U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.” Read the Statement here.

Reading Aloud: Fair Use Enables Translating Classroom Practices to Online Learning

As many teachers face an abrupt shift to online teaching, there have been questions about how copyright law applies to the translation of classroom-based practices of reading aloud to students to the digital environment. This guide examines how fair use applies to read-aloud activities online, concluding that “[w]hen researchers translate classroom practices of reading aloud to online student facing tools, such as distribution through a school website, learning management system, or live webcast, fair use enables most of the same practices online that take place in person. Read the guide here.

Over 50 Publishers Offering Free Content on Project MUSE

In response to challenges created by COVID-19, Project MUSE has partnered with more than 60 publishers to temporarily make scholarly content freely available to assist with access for the many students, faculty, and researchers now working remotely. More than 15,000 books, and over 230 journal titles—comprising well over 10,000 issues and more than 185,000 articles—are available through this initiative. More details on the content and the full list of participating publishers are available on the Project MUSE website.

United States Copyright Office’s Public Notice Regarding Timing Provisions Involving Certain Registration Claims and Notices of Termination for Persons Affected by COVID-19

The United States Copyright Office has announced temporary extensions for registering copyrights and recording notices of termination for those unable to comply with deadlines as a result of the COVID-19 emergency. The Copyright Office has provided this temporary measure to accommodate copyright owners who may be prevented from completing and submitting materials in a timely manner due to lack of access to physical documents, including deposit copies of copyrighted works, or the inability to deliver materials to a mail carrier. To qualify, applicants must submit a statement certifying under penalty of perjury that they would have met the deadline but for the national emergency. For applications that can be submitted entirely in electronic form, the timing provisions are unchanged. For more information, visit the Office’s webpage dedicated to operational updates during the COVID-19 pandemic.

Authors Alliance Weighs in on the Next Register of Copyrights

Posted March 23, 2020
photo by Carol Highsmith

Authors Alliance has provided guidance in response to the Librarian of Congress’ request for public input on the expertise needed by the next Register of Copyrights and the top three priorities for the next Register.

In our submission, we encourage the Librarian of Congress to appoint a Register who has a demonstrated willingness to take into account the diversity of viewpoints among creative communities, has the knowledge and skills to support the Office’s modernization efforts, and places a high value on developing practices and policies that are informed by empirical data.

In addition, we identify three priorities for the next Register:

  • Improving Ownership Records: The Register should prioritize plans to ensure that the public record of copyright ownership is accurate, complete, and timely. Alongside modernization efforts to make registration easier, the Register should work with Congress to identify and implement meaningful incentives to ensure copyright records, including those reflecting transfers of ownership, are accurate.
  • Providing Comprehensive Access to Records: The Register should prioritize efforts to make registration records and recorded documents fully available and searchable online. The information included in these documents needs to be readily accessible to the public to help facilitate permissions requests, prevent works from becoming orphans, and establish how long copyright lasts for any given work.
  • Making Fees Affordable: The Register should prioritize adopting methods for differentiating fees, giving particular consideration to authors whose works have an unproven or low commercial value. Empirical evidence suggests that registration decreases in response to small increases in registration fees. Affordable fees will bolster the public record and help ensure authors’ legacies are not lost.

Read our full submission at this link.

Authors Alliance Submits Comments to USCO on the Meaning of Publication in the Online Context

Posted March 20, 2020
Photo by Luis VIllafranca on Unsplash

Authors Alliance has submitted comments to the U.S. Copyright Office in response to its request for public input on the meaning of “publication” in the online context. The Office sought comments to support its effort to provide additional guidance regarding the determination of a work’s publication status for registration purposes.

Our comment encourages the Office to promulgate a regulation to allow applicants to identify a work as having been first “published” online. In the Internet age, distribution through online, digital, and electronic channels is the primary primary means by which copyrightable content reaches the public at large, and has eclipsed if not eliminated many traditional, non-electronic forms of distribution. There is no reason why applicants should not have the option to specify such a widespread mechanism of distribution as the means by which their works were published.

We further encourage the Copyright Office to adopt guidance that “publication” occurs when a work is first offered, under the rights-owner’s authority, for viewing online without technological restrictions that prevent downloading or other reuse. To do so would add much needed clarity and promote broader use of copyrightable works.

Authors Alliance thanks the exceptional team at Latham & Watkins for preparing these comments. To read the full comment, click here.

District Court Finds Majority of Uses to be Fair in Georgia State E-Reserves Case

Posted March 4, 2020

On Monday, a district court in Georgia issued a decision in the Cambridge University Press v. Becker case, concluding that 37 of the 48 infringement claims at issue in the case are fair use. This is the latest decision in a case that began in 2008 when publishers sued Georgia State University (“GSU”), alleging that faculty at GSU infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. The case has bounced back and forth between the district court and the Eleventh Circuit, with the Eleventh Circuit reversing and remanding the case to the district court twice. For details on the history of the litigation here, see this summary by Krista Cox.

In 2017, we filed an amicus brief with the Eleventh Circuit in support of GSU’s position that limited use of copyrighted material for nonprofit educational purposes falls within fair use. In our brief, we discussed how our members’ experiences accord with the district court’s conclusion that academic authorial incentives to create scholarly book chapters would not be impaired by a fair use ruling.

We explained that the primary motivation of academic authors to write scholarly book chapters is generally to share the knowledge and insights they have gained, and the type of reward that academic authors have generally sought and hoped to attain through writing scholarly book chapters is enhancement of their reputations. Bolstering the case for fair use, we discussed how the use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.

Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. Our brief highlighted the views of several authors of book chapters at issue in the case who reflected on the benefit of fair use to their goals of reaching readers and contributing to academic discourse. Norma Mertz, Professor of Higher Education Administration at University of Tennessee, Knoxville, wrote “I have no objection to the fair use of chapters from my books. Indeed, I find the suit to prevent use of such chapters a serious hindrance to the advancement of knowledge.”

Other authors pointed to the benefits of publishing academic works. Douglas Harper, Professor Emeritus of Sociology at Duquesne University, wrote “There is reputational benefit… to doing this work. … The point of this work is to share it!”

Many of our members believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. We applaud the district court’s latest decision finding the majority of the uses of unlicensed excerpts of copyrighted works in the e-reserves to be fair.

Does Copyright Require Authorization to Use Data “Subsisting in Copyright Works?”

Posted February 20, 2020

Authors Alliance thanks Matthew Sag, professor at Loyola University Chicago School of Law, for this guest post (originally published on InfoJustice.org).

The World Intellectual Property Organization in Geneva has requested comments on a series of questions about whether “use of the data subsisting in copyright works without authorization for machine learning constitute an infringement of copyright?” I have joined other copyright experts in a submission to WIPO commenting on their questions. This note explains in more detail some of my reservations about use of the phrase “use of the data subsisting in copyright works without authorization” in WIPO’s questions and in our general thinking about the relation between copyright and text and data mining.

The phrase “use of the data subsisting in copyright works without authorization” is unhelpful, to say the least.

To begin with the most obvious problem, the “use” of the data or facts subsisting in copyright works generally requires no authorization. For example, this morning I “used the data” in on the weather page of to my local newspaper to decide whether I should shovel snow or wait for more snow to fall. No doubt, the newspaper is protected by copyright, but the facts contained therein are not.

Moreover, the second problem with the question WIPO proposed is that my “use” of the weather data required no authorization because it did not involve any action on my part implicating the exclusive rights of the copyright owner. I did not make a copy of the newspaper, I did not publicly perform it, I did not turn it into a digital audio transmission, etc.

Both of these points are Copyright 101, but it is easy to lose sight of the fundamentals when contemplating new and unexpected uses of copyrighted works in a rapidly evolving technological environment. It does not make sense to ask “Should the use of the data subsisting in copyright works without authorization for machine learning constitute an infringement of copyright?” in the abstract. Instead, we need to focus with more precision on the potential copyright issues that are actually raised by AI in particular contexts, and to do that we need to understand the relationship between text data mining, on the one hand, and machine learning and AI, on the other.

Text data mining refers to any computational processes for applying structure to unstructured electronic texts and it generally involves employing statistical methods to discover new information and reveal patterns in the processed data.[1]

Machine learning refers to a cluster of statistical and programming techniques that give computers the ability to “learn” from exposure to data, without being explicitly programmed.[2]

The term AI or artificial intelligence is mostly used to refer more sophisticated forms of machine learning, or else to describe speculative accounts of what might be possible with future technology. If we put science fiction and hyperbole to one side, we can proceed to talk about machine learning and AI interchangeably in terms of the relevant copyright issues.

If moving beyond the premise that AI is a magical process that defies human understanding, we can see the third fundamental problem with the phrase “the data subsisting in copyright works.” The notion that AI is using data that “subsists” in copyright works reflects a fundamental misunderstanding of the technology at issue. Unless the copyrighted work is something like a book of used car values, the data does not subsist in the work waiting to be extracted. The data is not a subset of the work. In almost every real-world use case of AI and machine learning, the data is derived by making an external observation about the work.

This is an important point: the non-expressive metadata produced by text data mining does not originate from the underlying copyrighted works. It does not subsist in those works. Instead, it is derived from them by acts of external observation.

As I have explained in a recent paper:

“Imagine plagiarism detection software that reports that student term paper B is substantially similar to an earlier paper A. Paper A originated with student author A, but the observation as to its similarity with student B’s term paper does not originate with either A or B. It originates with the software algorithm programmed to detect plagiarism.

Likewise, a word frequency table derived from Moby Dick did not originate with Herman Melville. Melville obviously realized that he would be writing the word “whale” over and over, but presumably he never set out to make an exact count. In both examples, to the extent the metadata about the work owes its origin to anyone, that person would be the person who derived the data, not the author of the underlying work.”[3]

The false premise that the non-expressive metadata produced by text data mining already “subsists” in the copyrighted works from which it is derived leads to false conclusion that when the data is used, something is taken from the original author. On the contrary, producing non-expressive metadata takes nothing from the original author because under any version of the idea-expression distinction, latent facts are not the property of the author. But even if they were, these are not their facts.

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Appeals Court Issues Important Opinion For Open Access Community And Licensees Of Creative Commons’ Non-Commercial Licenses

Posted January 27, 2020

Authors Alliance is grateful to Elizabeth H. Yandell, associate at Latham & Watkins, for contributing this post about a recent decision interpreting the “non-commercial” element of Creative Commons licenses.

Photo by Bill Oxford on Unsplash

The Ninth Circuit Court of Appeals recently issued an important opinion interpreting a widely used Creative Commons “Non-Commercial” license. The case, Great Minds v. Office Depot, Inc., addresses whether the license terms are violated when a bona fide non-commercial user pays a for-profit enterprise, like a copy shop, to make copies at the non-commercial licensee’s direction. The court’s answer is no: “Under the License, a non-commercial licensee may hire a third-party contractor, including those working for commercial gain, to help implement the License at the direction of the licensee and in furtherance of the licensee’s own licensed rights.”

In other words, a licensee may rely on contractors like Office Depot to assist in its own non-commercial use of the work without violating the license, even when the contractor earns a profit for its trouble. The opinion provides valuable confirmation of the license’s scope and will ensure continued ease of access to the more than 300 million works licensed under Creative Commons’ non-commercial licenses.

* * *

Many in this community are familiar with Creative Commons and may have interacted with their public licenses. For those who are not: Creative Commons is a non-profit organization that has developed a suite of free-to-use, off-the shelf copyright licenses. Authors use these licenses to communicate that others are legally free to use their works, so long as certain conditions are satisfied. For instance, the license at issue in the lawsuit requires that the licensed work be used only for “non-commercial” purposes, in addition to other conditions.

The lawsuit concerned an elementary school math curriculum called Eureka Math, which is created and published by Great Minds. Great Minds sells Eureka Math in print form, and makes a digital version available for download and non-commercial use pursuant to the license. The most common licensees of Eureka Math—school districts that incorporate Eureka Math into their curriculum—often engage commercial copy shops, including Office Depot, to create copies of the Eureka Math course packet. Great Minds sued Office Depot over these copies, claiming they were not “non-commercial” in nature, even if done at the direction of the non-commercial licensee school districts, because Office Depot made a profit. Great Minds’ position was that Office Depot became a licensee in its own right, and was therefore required to abide the terms of the license. It argued that Office Depot’s for-profit copies violated the license’s non-commercial requirement, and therefore infringed Great Mind’s copyright in Eureka Math.

Creative Commons recognized that Great Minds’ position, if adopted, would severely undermine the utility of its non-commercial licenses. It would mean that bona fide non-commercial users, such as the school districts that use Eureka Math, would be required to handle all intermediate steps in-house (i.e., copying and shipping), or else find contractors that were willing to pay a royalty to the licensor. In turn, Great Minds’ position could also have discouraged or prevented proper licensees who do not have sufficient resources to perform these services themselves from using the works at all.

Creative Commons decided to take action. Represented by the law firm Latham & Watkins, Creative Commons submitted an amicus curiae (friend of the court) brief in support of Office Depot to provide its interpretation of its license and the applicable law. Creative Commons’ submission explained that it is the end-user who is the licensee, and that it is only the end-user licensee’s purpose that must be non-commercial. Creative Commons explained that the alternative interpretation would yield absurd and arbitrary results. For instance, under Great Minds’ interpretation, a school district can rent or purchase a copy machine and have their employee, who is paid a salary, make copies on it, but may not pay a non-employee contractor to use the same machine. It could also send the same employee to pay a fee to “hit copy” on Office Depot’s copy machines, but could not pay Office Depot to have its employees press the same button.

The court agreed with Creative Commons’ interpretation and held in favor of Office Depot. The court’s decision holds that a “licensee’s hiring of a third-party copy service to reproduce licensed material strictly for the licensee’s own permitted use does not turn that third party into a licensee that is bound to the License terms” and that the license “extends to all employees of the schools and school districts and shelters Office Depot’s commercial copying of Eureka Math on their behalf.”

The Ninth Circuit’s decision is consistent with the Second Circuit’s decision in an earlier lawsuit by Great Minds that made the same claims against FedEx. These results provide important guidance and confirmation for the open access community, and will protect and encourage continued use of works that benefit the broader community and public. Authors Alliance members seeking to share their works with non-commercial licensees can rest assured that those individuals can access and use materials to the fullest extent intended.

Authors Alliance Supports Immediate Access to Federally Funded Research

Posted December 20, 2019
Photo by Tim Mossholder on Unsplash

Media sources report that the Trump Administration is considering a policy to make the results of federally funded research immediately available for the public to freely access and use. Current policy requires results of federally funded research be made available in pre-print form within 12 months of publication. The rumored policy would eliminate the 12-month embargo. As an organization with a mission to advance the interests of authors who want to serve the public good by sharing their creations broadly, Authors Alliance strongly supports such a policy.

Many of our members are authors who rely on taxpayer dollars to fund their research and want the results of that research to be immediately available for potential readers to readily locate and access without being turned away by paywalls. Immediate and free online availability increases their works’ visibility, helping it to reach readers and benefit the public. Absent a federal policy, many authors simply do not have the bargaining power necessary to demand from publishers the level of access they want for their research. 

Removing barriers to access creates a more hospitable environment for future scientific advancements. Medical patients and their family members have especially compelling needs for this information. Many students, teachers, researchers, and other professionals from low- and middle-income countries struggle to get access to prohibitively expensive subscription-based journals. Even individuals at U.S.-based institutions may find that their libraries do not have the resources to subscribe to relevant journals in their fields. By removing price barriers, it is easier for students, teachers, researchers, and practitioners to access the information they need to learn, teach, research, and practice in their fields.

The rumored policy change does not require publishers to make the final version of articles based on federally funded research free—just for authors to make the pre-publication versions available. Publishers can still charge subscriptions for access to the final published version of these articles, not to mention all of the articles not funded by taxpayer dollars. Or publishers can charge for their value-added publishing services to those institutions who want professional peer review. By paying for publishing services rather than paying for the right to read, institutions can use their budgets to pay for publishing rather than for subscriptions, publishers can earn a living, and the public can then read taxpayer funded research without paying for the privilege.

A policy requiring the outputs of federally funded research be made immediately available would maximize the value of investment in research by ensuring that more readers can access research results than if the works were available through restricted means alone. For these reasons, Authors Alliance supports a policy that would ensure that the public is not made to pay both to create and to read research and would open up opportunities for others to build upon research, accelerating the pace of innovation and discovery.

Georgia v. Public.Resource.Org: Copyright Case Before the Supreme Court

Posted December 2, 2019
photo of the Supreme Court building
photo by MarkThomas | Pixabay

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an overview of Georgia v. Public.Resource.Org Inc. Today, the Supreme Court of the United States will hear oral arguments in this case, which examines whether the “government edicts” doctrine extends to the Official Code of Georgia Annotated, rendering it uncopyrightable.

Background

The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.

Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.

Georgia filed suit against PRO claiming copyright infringement. Before the lower courts, PRO invoked the judicially-created “government edicts” doctrine. As a matter of public policy, courts have held that government edicts having the force of law, such as statutes and judicial decisions, are not eligible for copyright protection. While the court of first instance agreed with the State of Georgia and the OCGA was found to be copyrightable, on appeal the Eleventh Circuit held that under the government edicts doctrine, OCGA is not copyrightable and rejected Georgia’s infringement claim against PRO. Now, the issue before the Supreme Court is whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an edict of government.

Position of the Parties

The State of Georgia and the Georgia Code Revision Commission submit that the annotations are not excluded from copyright protection; the annotations lack the force of law and therefore do not trigger the government edicts doctrine. Georgia also argues that the annotations are “derivative works” from the statutes and though published alongside materials in the public domain, they nonetheless are produced by a private entity. Finally, Georgia states that copyright in the annotations is the underlying incentive for its partnership with Lexis and, absent copyright protection for OCGA, Lexis would lose incentive to produce the annotations unless Georgia used taxpayer funds to directly pay for the services.

Public.Resource.Org argues that, in addition to texts with binding legal effect, any works that represent an “authentic” exercise of state legal authority, including legal works adopted or published under the authority of the state, are uncopyrightable edicts of government and therefore cannot be copyrighted. They posit that as long as the documents embody the authority of the state, such works would not be subject to copyright, even if they do not have legal force. PRO concludes that since the OCGA is an official legal document that holds itself out as “published under the authority of the State,” it is therefore a government edict that is ineligible for copyright protection.

Next Steps

Audio of the oral arguments in Georgia v. Public.Resource.Org should be available on the website of the Supreme Court on Friday. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the implications and outcome of this case. We will provide an update once the Court issues its decision in this case.

Dr. Seuss, Picasso, and Grease: Fair Use in the Courts

Posted November 5, 2019
Photograph of Nicolas Charest

As a follow up to our recent coverage of the fair use issues in the Chronicle Books v. Audible Inc. case, Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on three current cases involving the doctrine of fair use. Click on each case name below to learn more.

Dr. Seuss Enterprises v. ComicMix LLC.

Oh, the Places You’ll Boldly Go! (“Boldly”) is a book that combines the use of imagery, characters, and other visual elements from the Star Trek franchise and the works of Dr. Seuss (most notably Oh, the Places You’ll Go!). In 2016, Dr. Seuss Enterprises sued the creators of Boldly, alleging that the work infringes on Dr. Seuss’ works. (The plaintiffs also brought trademark and unfair competition claims, which are not reviewed in this post.) As for the copyright claim, the defendants argued that the use was permitted under the fair use doctrine.

Dr. Seuss’s Oh, the Places You’ll Go! (left) and ComicMix’s Oh, the Places You’ll Boldly Go! (right)

In March 2019, the district court held that the use of elements of Seuss’s work in Boldly is a fair use. Under the first fair use factor (the purpose and character of the use), the court found that although defendants borrowed from Dr. Seuss’ work, these elements were always adapted and the work is highly transformative, thus favoring fair use. Because Dr. Seuss’ work is highly creative, the court found that the second factor (the nature of the work), slightly favored the plaintiffs. Under the third factor (the amount and substantiality of the portion taken), the court found that because the elements are similar, but not replicated, the third factor does not weigh against the defendants. The court explained that  while some shapes were borrowed, they were adapted to the Star Trek universe; for example, the narrator is transformed into Captain Kirk and instead of a Seussian landscape, the cover image is set in space. Under the fourth factor (the effect of the use on the market), the court found that the plaintiff failed to introduce evidence demonstrating that Boldly will substantially harm the market for Oh, the Places You’ll Go!, concluding that the fourth factor therefore favors neither party. Balancing all factors together, the court concluded that Boldly is a fair use of Dr. Seuss’ literary universe.

Dr. Seuss Enterprises appealed the decision, and the case is now before the US Court of Appeals for the Ninth Circuit. In its opening brief filed in August, Dr. Seuss Enterprises argues that the four factors do not lead to a finding of fair use. They argue that Boldly is not transformative since it does not parody, comment, criticize or comment on Oh, the Places You’ll Go!. They argue that the defendants “merely aped the purpose of Go!: entertaining the readers (mostly graduates starting out in the world) with an uplifting story.” They further highlight that Dr. Seuss’ works are substantially borrowed because elements central to the Seussian universes are taken, and that merely putting Star-Trek elements in what is otherwise a Seuss world does not result in any transformation. Finally, Dr. Seuss Enterprises argues that Boldly is likely to harm the market for authorized mash-ups.

Recently, the defendants filed a reply brief maintaining that Boldly makes fair use of Dr. Seuss’ books. We will follow developments in the Ninth Circuit.  

De Fontbrune v. Wofsy

In the late 1990s, Alan Wofsy, a San Francisco-based art gallery and art book publisher, published and distributed in France The Picasso Project, a catalogue containing reproduction of photographs of Pablo Picasso’s works. These photographs were taken from another catalogue initially published by Christian Zervos (the Zervos Catalogue). Yves Sicre De Frontbrune then acquired the rights into the Zervos Catalogue, and later filed a copyright infringement claim against Wofsy on the basis that The Picasso Project infringed on the copyrights over the photographs. In 2001, a judgment of copyright infringement was obtained in France against Wofsy which also ordered an “astreinte” that required the defendant to pay €10,000 for each future act of copyright infringement in the works. In 2011, copies of The Picasso Project were again found in France and De Fontbrune sought enforcement of the astreinte and consequently a French court awarded €2 million to De Fontbrune in 2012.

Recognition of the 2012 judgment in California was then sought to enforce the award of money. As part of its analysis to determine whether a foreign judgment can validly be recognized and enforced in the United States, a court must determine whether the judgment is repugnant to the public policy of the forum state or the United States. Wofsy argued that, based on the same facts in the United States,  the use of the copyrighted photographs was protected by US fair use and there would be therefore no finding of copyright infringement, which would mean that the astreinte judgment issued by the French court was “repugnant” to US public policy.

The California district court analyzed the four fair use factors to assess whether a conduct constitutes fair use. The Court decided that the first (purpose and character of the use) and fourth (the effect of the use on the potential market) factors weighed strongly in favor of fair use. The Picasso Project is a reference work intended for libraries, academic institutions, art collectors, and auction houses, which demonstrates that it has an educational purpose, despite the concurrent commercial nature of the work. The Court also found that The Picasso Project and the Zervos Catalogue were destined to disparate markets and were offered at wildly different price points, Zervos being sold as high as $100,000 at auction while The Picasso Project’s volume can be purchased at $150 a piece or as a set ranging from $2,780 to $3,780. It appeared unlikely to the Court that one would ever compete against the other. The court found the second factor (the nature of the copyrighted work), to slightly disfavor fair use, because while the photographs are creative works, the goal was to faithfully reproduce Picasso’s work, not to showcase the original artistic expression of the photographer. Finally, the court found that the third factor (the amount and substantiality of the portion taken), weighs in favor of fair use because Wofsy copied less than ten percent of The Zervos Catalogue’s photographs. The court ultimately concluded that it would not recognize the 2012 judgment because The Picasso Project’s use of copyrighted photographs qualifies as fair use.

On September 12th 2019, the district court granted summary judgment in favour of Wofsy on the basis of the fair use doctrine, and partly in favour of the representatives of De Fontbrune on other procedural grounds. Both parties have appealed.

Sketchworks Industrial Strength Comedy, Inc. v. Jacobs

Sketchworks, an Atlanta-based sketch comedy company, wrote and produced a play titled Vape: The Musical. Vape follows the narrative arc of the hit musical Grease, but brings the cast of characters into the modern day by integrating elements such as online dating, millennial slang, and vaping. A link to the full performance can be found here.

Sketchworks performed Vape in Atlanta in 2018 with enough success to warrant a production of the play in New York, which was scheduled to open in August 2019. Prior to the show’s opening, Sketchworks received a cease-and-desist letter from the copyright holders in Grease, claiming that Vape infringes on Grease and demanding that the production immediately be stopped. Shortly after, the New York theatre cancelled the performances. On August 9th 2019, Sketchworks filed a motion for a declaratory judgment, asking a district court in New York to find that to the extent that Vape uses copyrightable elements from the play Grease, it is fair use under the exception of parody in copyright law.

Sketchworks argues that Vape is a deliberate parody of Grease that is intended to criticize its misogynistic and sexist elements, which the creators argue have not aged well. At the same time, the play is set in modern times and attempts to show that the struggles of contemporary teenagers are similar to what their Grease-counterparts experienced in their time. As stated in the complaint, “Vape not only comments on the controversial themes in Grease, it also explores whether modern society has progressed at all by pointing to current systemic issues that still exist based on the misogyny of the era in which Grease was written and is set.” Sketchworks concludes that any elements that may be copyrightable are used in a sufficiently transformative manner and are used for parody purposes which justify a finding of fair use on its play’s use, if any, of copyrightable elements borrowed from Grease.

The response to the complaint is due November 8.

__________________________________________

To learn more about fair use, we recommend taking a look at our Fair Use FAQs. Nonfiction authors can explore Authors Alliance’s Fair Use for Nonfiction Authors, a guide that helps nonfiction authors make confident fair use decisions when incorporating source materials into their writings. Other communities of creators can learn how their communities apply fair use in situations typical to their given community through best practices documents developed by those communities.

Authors Alliance Supports Limitations and Exceptions and Rights Reversion at SCCR/39

Posted October 29, 2019

Last week, Authors Alliance participated in the thirty-ninth session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/39) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for libraries and archives and for educational and research institutions. Authors Alliance presented a statement to the Committee on how limitations and exceptions can benefit authors.

Authors Alliance was pleased to partner with Rebecca Giblin of the Author’s Interest Project to host a side panel at the SCCR/39, “Supporting Authors in a Digital Age.”

Giblin shared preliminary results from a study of more than 50 years of publishing contracts from the archive of the Australian Society of Authors. The research revealed that publication contracts are often insufficient to protect authors’ interests. For example, 14% of the contracts examined by Giblin and her colleague Joshua Yuvaraj did not include out-of-print rights, and only 6% of contracts used objective criteria (such as sales or revenue numbers) to define out-of-print status.

Giblin described how reversion rights give authors fresh opportunities to financially benefit from their works, open up new investment opportunities for publishers, and promote ongoing availability to the public. Giblin explained that their research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to US termination of transfer laws.

Brianna Schofield discussed how reverting rights can help authors to reach more readers, continue to contribute to scholarly and cultural discourse, and ensure that their works’ continuing impact and relevance are not limited by their commercial lives. She shared examples of authors who have regained rights and subsequently released their books on open terms, self-published their works, and placed their books with a new publisher. Schofield explained that, because of the tremendous benefits of reversion for authors and the public, Authors Alliance supports statutory termination rights for authors, as well as strengthening provisions governing reversion rights in publication contracts.