Copyright

CopyrightX Meets Sony, DMCA

by Lee Gesmer on February 16, 2016

CopyrightX Meets Sony, DMCA

I’m privileged to be a CopyrightX teaching fellow this year, and this week CopyrightX met the real world – in the form of an encounter with Sony Music and the DMCA. Professor William Fisher’s CopyrightX lecture 3.3, The Subject Matter of Copyright: Music, contains audio clips of Bob Dylan’s All Along the Watchtower played by Dylan, Hendrix and Stevie Ray Vaughn. The course is making the point, with musical illustrations, that U.S. copyright law allows cover versions, so long as the artist making the cover pays the required compulsory license, and, that the cover version can depart quite significantly from the fundamental character” of the original.

Unsurprisingly, Youtube’s automated ContentID system, cannot distinguish fair use from illegal use. Presumably, a “put back” notice will resolve this little contretemps.

Techdirt’s Mike Masnick discusses the whole episode in more detail, here.

This is not the first time a Harvard law professor has been the subject of a DMCA takedown of an educational fair use.  … Read the full article

Lets Go Crazy! The Dancing Baby, the DMCA  and Copyright Fair Use

It’s not often that a case involving a 29 second video of toddlers cycling around on a kitchen floor goes to a federal court of appeals, much less results in an important,  precedent-setting copyright decision. But that is exactly what happened in Lenz v. Universal Music Corp.

The cases arises from an issue inherent in the Digital Millennium Copyright Act. The DMCA allows copyright owners to request the “takedown” of a post that uses infringing content.

But, what does the copyright owner have to do to determine, first, whether fair use applies? Does it need to do anything at all?

This question has finally been decided by the Ninth Circuit in a much-anticipated decision issued on September 14, 2015.

The case had inauspicious beginnings. In 2007 Stephanie Lenz posted to YouTube a 29 second video of her toddler son cycling around the kitchen, with Prince’s song “Let’s Go Crazy” playing in the background.… Read the full article

No, You May Not Copyright a Chicken Sandwich

by Lee Gesmer on September 1, 2015

One of the hoariest chestnuts of copyright law is that a recipe is not copyrightable.

Seemingly unaware of this – or in outright defiance of the law – the plaintiffs in Lorenza v. South American Restaurants Corp. argued to the contrary.  Specifically, the plaintiffs claimed copyright in a “Pechu Sandwich” recipe consisting of”fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.”

The complaint contained no allegation that the “recipe” for the sandwich was in a form of expression beyond that of a list of ingredients.

The district court dismissed the copyright claim, and the First Circuit made short work of affirming:

Contrary to [plaintiff’s] protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; . . .. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.

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The fact that the Supreme Court has asked the Obama Administration (via the Office of the Solicitor General) to comment on Google’s application for certiorari in Oracle v. Google* has focused renewed interest on this case – not that it needs it. The case, if the Supreme Court accepts it, could be a replay of Lotus v. Borland, an important software copyright case the Supreme Court tried but failed to decide in 1996, when the Court deadlocked 4-4 (one justice abstaining).

For detailed procedural and substantive back ground on this case see these earlier posts: How Google Could Lose on AppealOral Argument in Oracle v. Google: A Setback for Google?CAFC Reverses Judge Alsup – Java API Declaring Code Held CopyrightableGoogle Rolls the Dice, Files Cert Petition in Oracle Copyright Case. I also made a presentation to the Boston Bar Association on this case before the CAFC decision, slides here.

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