GIVE PEOPLE A BREAK – GIVE COURTS A BREAK!

Difficulties that immigrants face trying to make it in the U.S.A.  

Click here to view our copyright petition on Change.org.

So many people are being sued – and threatened to be sued – by “copyright trolls” which are holders of intellectual property rights (such as video, film, photos, software, boxing broadcasting rights and other creative content) who seek top profit in the Courts by pursuing copyright infringement cases.

Our country is a country of immigrants and very few people understand the intricacies of copyright law.  Nevertheless, “everyone is presumed to know the law” as the old saying goes.

In my IP law practice, I have seen many minorities and their companies, and others, bullied for various infringement claims and forced to pay large settlements for using a photo on their website, or downloading or sharing files through BitTorrent, or broadcasting a boxing match without commercial licensing rights at their {half-filled} restaurants, bars and taverns.

Most people are GOOD PEOPLE and don’t realize they are doing things wrong, and most have never received a CEASE and DESIST letter (which would naturally notify people they are violating the law and they should stop).  Most people would in fact stop.  Of course, this would dry up the “infringement market” for many companies who are profiting in this space.  While I understand the need to protect intellectual property, I see many small businesses getting smashed by large five figure settlements.

To me, I think a Cease and Desist letter should be required as the first contact with a individual or company violating copyright laws.  The recipient of the letter, if true, should pay a $250 penalty to cover the costs of the cease and desist letter or the rights holder could reserve their rights to go to Court.

This would both cut down on the large number of federal court lawsuits being filed each year (clogging the Courts with these cases), and for our new friends to this great country, (and perhaps not familiar with all the laws), this would allow them to avoid these types of “financial disasters” that can put them on the brink of fail, unwittingly in many cases.

Who will join me?

Using the “Heart of the Work” is something everyone should consider before relying on the fair use defense

Heart of the work

Plaintiff Los Angeles News Service (LANS) licensed its news stories, photographs, audiovisual works, and other services to other news media outlets. While covering the 1992 Los Angeles riots, LANS filmed several segments of nighttime rioting, including the iconic segment titled Beating of Reginald Denny. Although LANS refused to grant defendant Channel 9 television station a license, the station broadcast the footage a number of times on commercially sponsored news programs.

Plaintiff sued the defendant for using an excerpt of its copyrighted videotape of the Reginald Denny beating during the 1992 Los Angeles riot.

The TRIAL court, weighing the statutory factors of 17 U.S.C.S. § 107, found that summary judgment for the defendant under a “fair use” defense was proper.  On appeal, the APPEAL COURT held that summary judgment was improper:  defendant’s use of plaintiff’s copyrighted tape was arguably in the public interest, as a percipient recording of a newsworthy event, defendant’s use was commercial and came in the wake of plaintiff’s refusal to issue a license.

Although the defendant used the tape because it recorded news of considerable significance from the best perspective of any witness, there was no evidence that alternatives were not available.

There was no dispute that the defendant used the “heart” of the tape. Under such circumstances, the court could not say that “fair use” was the only reasonable conclusion a trier of fact could reach.  Summary judgment was thus improper.

Analysis:

Fair use is a mixed question of law and fact.’ If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985); other citations omitted).

Amount and substantiality of what was used. While a small amount of the entire Videotape was used, it was all that mattered. As we said of the defendant Audio Video Reporting Services in Los Angeles News Service v. Tullo, which provided a video “news clipping” service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, “[a]lthough AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage. In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Thus the news programs AVRS copied included what LANS’s customers thought was the best of the LANS footage — its `heart.'” Id. at 798. Here, as there, this factor weighs against KCAL, for “the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression.” Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233.

AS YOU CAN SEE, MAKING THE CALL ON FAIR USE IS NEVER AN EASY ONE.  BEFORE USING COPYRIGHTED WORKS WITHOUT A LICENSE, ASK “AM I USING THE HEART OF THE WORK?”  IF SO, IT MIGHT BE BETTER TO REFRAIN FROM COPYING, EVEN IF FOR “NEWSWORTHY PURPOSES.”

 

Here are some recent cases that have come down dealing with Copyright Law.

  1. Virginia Fair Use Case:  (reversing a decision finding fair use in a photo copyright case involving a picture of Washington D.C.).  The Court noted:

“The fair use affirmative defense exists to advance copyright’s purpose of “promot[ing] the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8 ; see also Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

The defense does so by allowing “others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

But fair use “is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.” Kienitz v. Sconnie Nation LLC , 766 F.3d 756, 759 (7th Cir. 2014).”

The “ultimate test” of fair use is whether the progress of human thought “would be better served by allowing the use than by preventing it.” Cariou v. Prince , 714 F.3d 694, 705 (2d Cir. 2013) ” Brammer v. Violent Hues Prods., 922 F.3d 255, 262 (4th Cir. 2019).

Our law firm has handled many cases of photo infringement involving fair use.  While it is important to protect the intellectual property of artists including their photos, illustrations, art, music, software, film and video, many times an infringement letter is sent without first considering statutory fair use rights.

Indeed, fair use is a “defense” to copyright but it is also a LEGAL RIGHT built specifically into the United States Copyright law.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The case has a really good analysis of all factors, and we plan to post a video discussing the factors in greater detail.

CASE ACT – Does it make sense?


Congress considers copyright small claims court.

A new bill considers creating a small claims court where filmmakers, photographers, jewelry companies, software designers and other copyright holders can bring their small claims cases.  Will it pass?  Right now (as of January 2020), it appears to be held up by one vote.  CPi believes there is no need for a copyright court in Washington D.C. based out of the Copyright Office and with damages that can reach up to $30,000 for willful copyright infringement.  While artists do deserve to be compensated for their works, and infringement does need to be deterred, the CASE ACT will likely lead to “floodgate litigation” and will result in many people being sued by artists without much considering of fair use rights.

Moreover, musicians, artists, photographers, videographers, writers, and illustrators ALREADY HAVE LEGAL RECOURSE for infringement of their Works.  They can already sue in federal court in their jurisdictions assuming they have REGISTERED THEIR CREATIVE WORKS.  So, there is no need to create a whole new Court in D.C. where thousands of lawsuits can be filed.  For registered Works, there are already many copyright lawyers ready to handle your case on a “contingency fee basis” (as the United States Copyright laws allow for the recovery of attorney fees for the Plaintiff if successful).  So, the argument “we deserve to get paid” is not a legitimate argument as they already have access to federal courts and attorneys are already incentivized to take these cases.

Another reason is that Defendants have the legal right to “opt-out” of the Washington D.C. based copyright small claims case.  They do not have to consent to jurisdiction and one reason they may not is that there is no apparent right to appeal or have the case reviewed if the panel makes a bad decision.   Some have argued that only unsophisticated persons would consent to jurisdiction (not knowing any better), and many individuals accused of infringement may not have the resources to put up a legal battle, and thus, the copyright court could turn into a “default judgment mill.”  This argument has merit.

This would also create new expenses for taxpayers in building out the process that does not need to be created because federal courts already exists and are well equipped to deal with copyright infringement claims.

Many organizations oppose or have concerns over the proposed CASE Act including:

American Library Association

Association of Research Libraries

Association of College and Research Libraries

Public Knowledge

We will keep an eye and see if they can get the final vote needed to pass the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).