Copyright Archives - Castaybert Law, NYC

March 8, 2022

Art, viewed throughout human history as one of the fundamental forms of human expression, cannot be machine-made or machine-conceived according to the US Copyright Office. The human consciousness behind creativity is a prerequisite to a work’s eligibility for copyright protection.

This issue garnered recent attention when Dr. Stephen Thaler, who attempted to copyright a work product of his Creativity Machine, which is run entirely on artificial intelligence, was once again denied by the USCO. The piece, entitled A Recent Entrance to Paradise, which features a haze of overgrown purple flowers that have grown over a tunnel intersected by railroad tracks, was created without any human manipulation.

Current copyright law only protects “the fruits of intellectual labor… founded in the creative powers of the [human] mind.” The USCO does not seem ready to stray from this principle, even in an age where computer thinking, 3D printing, and artificial intelligence are becoming more mainstream. A work that fails to evince the creative intervention of a human being, like A Recent Entrance to Paradise, is not well-positioned to convince the Office to “depart from a century of copyright jurisprudence.”

Among the Court’s reasons for denying the application was the uniform stance taken across the courts, including an appellate decision affirming a lower court’s denial of a copyright for a “selfie” photograph taken by a monkey in 2011. Courts in the United States are not alone in their position that copyright protection should be reserved for human-created works. The European Patent Office and UK Intellectual Property Office rejected applications from Dr. Thaler for DABUS, another AI that, like the Creativity Machine, he owns. South Africa and Australia have granted patent protection for AI-created inventions in recent years, including a South Africa patent for another of Dr. Thaler’s machines.

This development in the world of Intellectual Property and Copyright is one to watch as AI becomes a more integrated part of our everyday lives, but for now, Copyright law requires the influence of human beings on potentially protected works.

To read more about this issue, see the original article from The Verge, here.

To read how Castaybert PLLC can assist you in Copyright and Intellectual Property matters, click here.

October 5, 2021-

Facebook is not “off the hook” after the Third Circuit ruled Section 230 of The Communications Decency Act does not protect the social media giant from liability in the use of a news anchor’s image in ads for adult dating services on its platform. Hepp v. Facebook, Inc., No. 20-2725 (3d Cir. 2021).

Karen Hepp, a morning news anchor for Fox 29’s Good Day Philadelphia, was made aware by colleagues in 2018 that her picture was appearing in ads for erectile dysfunction products and adult dating services on Facebook. The images were posted without Hepp’s knowledge or approval, nor was she receiving compensation for the use of her image.

In her suit against Facebook, Ms. Hepp alleged violations of her right to control her public image and likeness under Pennsylvania law, made more pertinent by the fact her face is well recognized by the public in her professional capacity as a television news anchor.

Though internet providers like Facebook are generally protected by the Communications Decency Act from liability stemming from third-party content, the Third Circuit ruled in favor of Ms. Hepp, citing her intellectual property rights and status as a public figure in the section 230 carve out. The fact the image was used for the sale of “prurient” goods on Facebook without Hepp’s permission or compensation helped bolster the narrow 2:1 opinion on the Court. The majority opinion held section 230 did not bar the state intellectual property claims, while the dissent did not see them as falling under the federal statute.

The case has brought the issues of free speech in new media and intellectual property to the foreground, and has attracted the attention of The Electronic Frontier Foundation (in support of Facebook) and The Screen Actors Guild (showing support for Ms. Hepp’s interest in controlling the use of her image and likeness). The Third Circuit’s split away from a Ninth Circuit decision on the same issue could bring Ms. Hepp’s case as far as the Supreme Court.

Click here to read the original article from the Associated Press.

Click here to read the opinion of the Third Circuit. Hepp v. Facebook, Inc., No. 20-2725 (3d Cir. 2021).

Click here to read how AC-Counsel can help you in matters of Intellectual Property.

April 08, 2021- Another copyright case has been decided in favor of fair use. In Lawrence Marano v. The Metropolitan Museum of Art, the Second Circuit sided with the Metropolitan Museum of Art (the Met), holding that the museum’s use of Marano’s 1982 photograph of Eddie Van Halen playing his “Frankenstein” guitar on its website as part of an exhibit of rock n’ roll instruments was fair use. The fair use copyright exception is a context specific inquiry; in this instance, the Court focused on the “transformative” nature of the Met’s use of the photo. The transformation included: “foregrounding the instrument rather than the performer” and including other photos and accompanying text.

ArtNet’s Taylor Dafoe shared a statement from a Met Attorney, Linda Steinman, who said “The Second Circuit’s decision in the Marano case is an important one recognizing that museums, as cultural institutions, have the freedom to use photographs that are historical artifacts to enrich their presentation of art objects to the public,” further that “The mission of the Met and all museums… is to provide the public with access to art—and this important decision protects, indeed strengthens, this important societal role.”

Find full article here.

Find full decision here.

Learn how CASTAYBERT PLLC can assist you with Intellectual Property Law needs here.

June 3, 2020 — The Vice President of the Artists Rights Society, Katarina Feder, recently authored an article for Artnet in which she answers questions of artists with copyright concerns. Ms. Feder touches on the copyright ownership of sold works, the copyrightability of and use concerns surrounding augmented reality art, and fair use in photo collages and memes.

Find the full article here. Learn about how CASTAYBERT PLLC can assist you with art law matters here.

March 20th, 2019 – Last week New York’s newest tourist attraction opened at Hudson Yards. The Vessel, designed by Heatherwick Studio, is a honeycombed shaped structure with 154 staircases latticed throughout and is quite picturesque. However upon further inspection into Hudson Yards Terms and Conditions – it appears that ERY Vessel LLC, the company responsible for running the structure, claims ownership to any and all photographs taken onsite prompting outcry from the public, writers, and critics.

For more details on this story – check out this article posted dezeen this week.

For information on Castaybert PLLC’s experience with intellectual property, please click here.

Generally copyrights are only issued to the author of the original work. The Work Made for Hire doctrine is an exception to this rule where an employer is the owner of the work and the copyright, but this is contingent on whether the creator is an independent contractor or employee.

When an employer hires an independent contractor to produce an artistic work, the copyright remains with the independent contractor unless he or she agrees to license or transfer those rights. The Work Made for Hire exception as applied to independent contractors, on the other hand, specifically requires (1) for both parties to sign a written agreement; (2) the agreement must specifically state that the work is a Work Made for Hire; and (3) the artistic work must fall under one or more 9 specific types of work.

These types are:

• Contribution to a collective work,

• Part of a motion picture or other audiovisual work,

• A translation,

• A supplementary work,

• A compilation,

• An instructional text,

• A test,

• Answer material for a test, or

• An atlas.

Thus if an employer, instead of the independent contractor, provides an agreement that includes appropriate Work Made for Hire language, then it is imperative that the work itself still fits into one of the nine enumerated categories.

The Work Made for Hire exception as applied to employees requires that the work is created within the scope of their employment; either created on the job or at the direction of their employer. While this seems to be more straightforward, there are of course gray areas – specifically, what is an employee? The Supreme Court has ruled that employment status is determined by weighing a number of factors examining how much control the employer has over a person’s work. In the case of freelancers, especially those with long-term contracts, it is best to clarify these things at the outset to avoid hiccups down the line.

For more information on how Castaybert PLLC can help you in securing, defending, or enforcing Works Made Hire Agreements with freelancers, please click here.

The basic tenet of copyright law is that protection is available for “original works of authorship fixed in any tangible medium of expression.” The most common example of a work that is eligible for copyright protection is a painting or sculpture. Once the work is fixed it is afforded protection and others cannot reproduce, make derivatives, publicly display, or distribute the work. But, copyright does not last forever. Once the copyright on a work has expired, it enters the public domain. While Congress has amended the time for copyright protection over the years, it is generally understood that any work created before 1924 has entered the public domain. As such, there is no doubt that the works of the Old Masters displayed in museums are part of the public domain.

Despite this understanding museums, like the Metropolitan Museum of Art, sell reproductions of these works as posters in their gift store and these posters include a copyright notice. So how is it possible that the museum can own the copyright in the poster when the original work is in the public domain?

It is commonly understood that merely reproducing artwork that is in the public domain cannot extend copyright protect or else the expiration of copyright would cease to exist. Therefore, the poster cannot be seen as merely a reproduction of the original work, but rather a completely new work eligible for its own copyright protection. For a work that incorporates material from the public domain or other copyrighted works to garner copyright protection, the creator must disclaim the preexisting material and the material remaining that has not been disclaimed must have some creativity.

Using this framework, the posters produced by museums of their masterworks can only be copyrightable based on the design and creative choices in the poster itself and the underlying work would be disclaimed. Note this does not give museum goers free reign to commercially exploit the photographs they take of the master works displayed. Most museums have a terms of service that patrons agree to when they purchase a ticket to enter which stipulates they are not allowed to use their photos for commercial gain.

Please click here for more information on how Castaybert PLLC can help register, enforce, or protect your copyright.

November 1, 2018 — On October 11, 2018, Donald Trump, with Kid Rock at his side, signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (“MMA” or “the Act”) in an effort to modernize copyright law in an era where digital streaming is king. Possibly most notably, the MMA creates a Mechanical Licensing Collective that is responsible for offering and administering blanket licenses to qualified personas and entities, collect and distribute royalties from digital music providers, and locate copyright holders whose works are used in other sound recordings among other functions. The Act is comprised of three bills concerned with royalties and licensing: 1) the CLASSICS Act, 2) the AMP Act, and 3) the Fair Play Fair Pay Act of 2017. Taking them in turn…

The CLASSICS Act

The CLASSICS Act (or Compensating Legacy Artists for the Songs, Service, and Important Contributions to Society Act) finally brings pre-1972 sound recordings into the federal copyright regime. By doing so, it ensures that artists who recorded music before February 15, 1972 will receive royalties and licensing fees when their songs or streamed or played on the radio. It also grants pre-1972 sound recording copyright holders the same exclusive rights (found in 17 U.S.C. § 106) and remedies (found in 17 U.S.C. §§ 502-505, 1203) as post-1972 sound recording copyright holders have enjoyed for years. As such, we have finally reached the long-awaited end to the confusing web of common law and state statutory rights governing pre-1972 sound recordings.

The AMP Act

The AMP Act (or Allocation for Music Producers Act) codifies the “Letter of Direction” practice, somewhat streamlining the ability for music producers, mixers, and sound engineers who took part in the creation of a sound recording to obtain royalties. AMP requires the Copyright Royalty Board to “reasonably implement a policy that provides . . . for acceptance of instructions from a [copyright holder] . . . to distribute to a producer, mixer, or sound engineer who was part of the creative process that created a sound recording.” Sec. 302(a)(5)(A), H.R. 1551-115 (2018). AMP also provides producers, mixers, or sound engineers (among others) to file for, and receive so long as the copyright holder does not object, royalties in the event that they are unable to obtain a Letter of Direction from the copyright holder. Codification of this longtime practice will help streamline the letter of direction process and provide oft-forgotten creatives behind the marquee artists a statutory means of securing royalties payments for their works.

The Fair Play Fair Pay Act of 2017

The Fair Play Fair Pay Act (“FPFP”) incorporates aspects of the CLASSICS Act and the AMP Act, while adding new wrinkles as well. In addition to requiring payment for pre-1972 sound recordings by closing a loophole exploited by digital streaming services and codifying the Letters of Direction practice, the FPFP creates a performance right for sound recordings on AM/FM radio and establishes a “willing buyer/willing seller” regime that ensures copyright holders receive fair market value for their recordings across all platforms and ensures songwriter royalties are undisturbed. The “willing buyer/willing seller” regime updates old law which required the Copyright Royalty Board to consider free-market conditions to determine fair rates. The

Conclusion

The Music Modernization Act is a much-needed revamp to an outdated copyright system.While it’s passing may not address all of the areas necessary to bring copyright law into the 21st century, bringing pre-1972 sound recordings into the federal regime, providing an updated royalties system that should provide fair pay to artists, and creating a clearer path for members of the creative process behind copyrighted works to obtain royalties is a step in the right direction.On the other hand, it will be interesting to see if the mechanical licensing regime leads to greater efficiency and whether the new scheme to distribute unclaimed royalties could lead to windfalls for the traditional licensing powers.

You can read the full text of the music modernization act here.

For more information on how Castaybert PLLC can assist you with copyright matters, visit here.

Last week, we saw some movement in the high-profile lawsuit between the Andy Warhol Foundation and photographer, Lynn Goldsmith, regarding Warhol’s iconic Prince portrait series produced in 1984. Both parties have made their pleas and filed cross-motions for summary judgment which could lead to a decision from the court clarifying the boundaries of fair use in copyright law.

In 1984, Goldsmith gave Vanity Fair a license for a one time use of her photo of the musical artist, Prince, as source material for an illustration by Warhol. Warhol created the illustration as well as 15 other portraits of Prince. In 2016, shortly after Prince’s death, the foundation licensed one of those portraits to Conde Nast for the cover of a magazine. It was around this time that Goldsmith learned of the Warhol series after seeing the images posted online.

Last year, the Andy Warhol foundation filed a pre-emptive lawsuit against Goldsmith in order to squash her claims that Warhol’s Prince portrait series is a violation of her exclusive rights under copyright law. The Foundation claims that there is no evidence of copying as it is unclear which photo Warhol was inspired by; but more importantly they claim that the series is an exercise of the fair use doctrine due to the work’s transformative nature and the fact it does not usurp Goldsmith’s market. Goldsmith, on the other hand, claims that the essence of her photograph is still present in the portrait series and that there is an overlap in the markets for the work.

The decision from the court as to whether Warhol’s portraits constitute fair use will help clarify the boundaries of the doctrine as it relates to appropriation art. This is especially important after a controversial 2013 decision from the 2nd Circuit which was widely seen as expanding the doctrine and led other circuits to question whether the test for transformative use was too broad.

For more details about the Warhol case, please click here.
A copy of the complaint filed by the Warhol Foundation can be found here.

Click here for more information on how Castaybert PLLC can assist you in either enforcing or defending your artistic rights.

October 4, 2018.

So, you own a piece of art that you want to sell. Can you take and use pictures of the artwork to promote its sale without running afoul of copyright laws? Yes, you can according to a recent decision from the Southern District of New York in Stern v. Lavender (“Stern”).

Overview

In Stern, long-time studio assistants of noted photographer Bert Stern alleged that Stern gave them original copies of his famous photos from Marilyn Monroe’s last photoshoot before her death. The defendants, seeking to sell the photos, captured images of the photos which they posted on eBay, Amazon, and other digital retail websites to promote the sale. In response, Stern’s widow brought suit against the former studio assistants, alleging the promotional photographs violated 17 U.S.C. § 106 of the Copyright Act, which grants copyright holders the exclusive right to create derivative works.

Fair Use

The defendants argued that their promotional photographs constituted Fair Use pursuant to Section 107 of the Copyright Act. The Fair Use doctrine permits non-copyright holders to use copyrighted works without permission depending on a balancing of four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Southern District Court stopped short of resolving the case in favor of the defendants due to a factual dispute surrounding ownership of the photographs in question that could not be resolved at the summary judgment phase. In spite of this, the Court considered the above factors in finding that photographs of copyrighted works made to promote the sale of a copyrighted work constitute Fair Use under the Copyright Act.

First Sale Doctrine

It is worth noting that the Court also found that the defendants, if they are indeed the rightful owners of the original copies of the photographs at issue, were undoubtedly permitted to sell the works pursuant to 17 U.S.C. § 109(a), known as the First Sale Doctrine.

Conclusion

Final pre-trial conference for this case is scheduled for November 8, 2018, when the Court will decide whether the defendants are indeed the lawful owners of the photographs at issue. If the Court finds that the defendants are the lawful owners, they will prevail on a fair use defense. Otherwise, the Court’s fair use finding will simply serve as favorable precedent for art collectors and dealers looking to sell copyrighted works.

Find the full decision on Justia here.

To learn how CASTAYBERT PLLC can assist you with an art law issue, click here.