Battle over Copyright Royalties of the Gershwin Brothers

Nearly a decade ago, George and Ira Gershwin, known as the Gershwin brothers, fought to have copyright extended to their songs. Now, after their deaths, the heirs of these songwriting brothers are disputing over how to divide the royalties, which have come from the copyrighting of this music. Since the American royalties were previously divided equally between the brothers, there is no dispute regarding them. However, in the EU copyright law differs from US copyright law. Since, Ira Gershwin outlived his brother by about 40 years, there arises a problem with European copyright law. In the EU, the copyright of a lyricist and a composer are distinct. Furthermore, these rights expire 70 years after the death of the lyricist or composer, and the music then enters the public domain. Thus, since technically George’s copyright earnings on his compositions expired in 2007 in the EU, there is a dispute. Since Ira’s copyright of his lyrics is still effective, his estate still gains royalties from the use of his songs. Thus, Ira’s heirs believe they deserve foreign royalties on his lyrics.

For more on this story, please go to: http://www.latimes.com/entertainment/news/arts/la-ca-gershwin1-2009nov01,0,6051370.story.

So What Exactly is Fair Use?

Eight months ago on this blog we discussed the case Fairey v. AP, in which Shepard Fairey claimed that his depiction of Barak Obama constituted a fair use of an Associated Press picture. But what exactly is "fair use"? Tim Wu, law professor at Columbia University, writing for Slate, breaks the concept down. Professor Wu writes about the way in which the fair use defense has been used in the past, and what policy considerations courts have weighed in deciding on whether a fair use defense is legitimate. As the case is still being litigated, we do not know if the fair use defense will save Fairy or not.

The fair use defense was used unsuccessfully in the Joel Tenebaum case. Tenebaum was sued by the RIAA for copyright infringement when he downloaded mp3 songs from KaZaA. The court ruled for the RIAA, saying that the fair use defense would not apply in this case. On his blog, Professor Charlie Nesson, who represented Joel Tenebaum, ponders who the word "fair" in fair use is supposed to refer to.

If fair use is to be judged from the industry’s perspective only, then the permission or lack of it from the copyright holder is all that counts ... But if fair use is to be judged from the user’s perspective, then making use of a new, superior form of music product – downloadable, fully transferrable music files – while there was nothing comparable available on the market, can easily be seen as a fair use.

Please read Nesson's blog for further discussion.

ACLU and PUBPAT say “Do Not Patent My Genes”

In May 2009 the American Civil Liberties Union (ACLU) and the Public Patent Foundation of Cardozo Law School (PUBPAT) filed suit against the U.S. Patent and Trademark Office, Myriad Genetics and the University of Utah Research Foundation, who hold patents for the BRCA1 and BRCA2 human genes. These genes are associated with breast and ovarian cancer, and, according to research, women with mutations of such genes have a higher risk of developing these cancers. Although screening for these genes can allow women to catch such cancers early and thus advance their treatment more quickly, the ACLU and PUBPAT believe that patents on the BRCA1 and BRCA2 genes can prevent such screening. The ACLU and the Public Patent Foundation argue that these patents thus are unconstitutional and invalid. The first hearing on this case was held on October 1, 2009, based on the defendant’s motion to dismiss. Due to the wide-reaching effect of these patents on women’s health and cancer research, it seems this debate will not quiet down in the near future. With organizations, such as the American Medical Association and the March of Dimes, supporting the ACLU in this suit and the amount of awareness the ACLU has raised regarding this topic, even if this suit is dismissed, the fight against such genetic patents will continue.

For more on this topic and events held by the ACLU and PUBPAT please go to http://www.aclu.org/freespeech/gen/brca.html.

Joker Obama: Copyright Infringement or Political Parody?

It’s certainly no joke. Yet another image of Obama has stirred up “copyright infringement concerns,” according to the photo-sharing website Flickr. This time, the image features U.S. President Barack Obama painted with the Joker’s clown makeup from the movie, “The Dark Knight.” Firas Alkhateeb, a 20-year-old college student from Chicago, created the image by using Adobe Photoshop to “Jockerize” the Obama photo. During the time that the Obama-Joker photo was hosted on Flickr.com, it generated over 20,000 pageviews until Alkhateeb received an email from the website informing him that the photo had been removed due to “copyright infringement concerns.” Now, many are lashing out at the website, insisting that image constitutes fair use as a political parody, a protected form of free speech. For this reason, there has been much controversy over whether Flickr’s removal amounted to political censorship.

More about this story can be found at LA Times.

Prof. Christopher Yoo on "The Transformation of the Internet"

The emergence of the Internet as the dominant means of communication over the past decade represents one of the most remarkable developments of our nation's technological history. A medium that began as a way for academics to send e-mail and exchange files has become a nearly ubiquitous phenomenon that has transformed almost every aspect of daily life.

The vision of the Internet as it existed in the late 1990s continues to serve as the starting point for current debates over communications policy. In framing the issues in this manner, policymakers overlook important changes in the economic and technological environment surrounding the Internet, including:

* The number and nature of Internet users
* The nature and variety of Internet applications
* The variety of networking and end user technologies
* The diversity of business relationships
* The maturation of the industry

In this lecture, delivered on April 21, 2009, Professor Christopher Yoo of the University of Pennsylvania Law School analyzed the nature of these changes and explored their potential for reframing current debates over Internet policy.

SEAS will host Lawrence Lessig on Friday the 17th.

The page with information about the event does not specify whether the event is open to the entire campus or not. The information is as follows:

For anyone who has ever used an image or other digital media under the "creative commons" license, or who would like to learn more about digital rights and intellectual property issues with respect to the internet, the following event will be of particular interest:

"Change v2: What Changes Obama Will Need"
Lawrence Lessig, Professor of Law, Stanford Law School
Friday, April 17, 2009, 5:00 pm
Location: Wu and Chen Auditorium, Levine Hall

In discussing the advice being given to our elected officials and current technological policies, Lessig, founder of the creative commons, will bring to light current problems and issues we now face when it comes to copyright law in a digital platform.

Lessig is a professor of law at Stanford Law School and is a former board member of the Electronic Frontier Foundation (EFF), was advisor on technical issues to Barack Obama during his presidential campaign, and is author of several books on the policy issues of intellectual property.

This event is sponsored by Penn Engineering, the Science and Technology Wing and The Dining Philosophers.

Symposium: Global Trademark Protection

The second panel presentation discussed trademark protection in a globalized world. Panelists discussed the economics of trademark protection, new issues in protecting trademarks internationally, and the impact of the recession on counterfeiting. Speakers on the panel included:

Moderator: The Honorable Kent Jordan, Third Circuit Court of Appeals
Glenn Gundersen, Dechert LLP
Marcia Paul, Davis Wright Tremaine LLP
Jef Pearlman, Public Knowledge
Martin Schwimmer, Trademark Blog and Moses & Singer
Peter Vogl, Jones Day

Symposium: Trademark Use in Virtual Environments

The first panel presentation of the day discussed the use of trademarks in virtual environments. Panelists discussed what it means to have virtual trademark, how trademarks in virtual worlds differ from real-world trademarks, and what types of issues arise in the new medium. Speakers on the panel included:

Moderator: Professor Christopher Yoo, University of Pennsylvania Law School
Bryce Coughlin, Steptoe & Johnson
Kevin Goldstein, Stradley Ronon Stevens & Young, LLP
James Grimmelmann, New York Law School
Sharon Marsh, US Patent & Trademark Office

Video Coming Soon

PIPG to Host International Trademark Symposium

Penn Intellectual Property Group's second annual symposium, to be held on Wednesday, April 1st, is titled "Trademark Law in a Global Economy." We are interested in exploring modern issues in trademark law that have arisen as a result of the globalization of businesses and the rise of the Internet. Specific panel topics are (1) trademark use in virtual environments, and (2) trademark protection in a globalized world (discussing the trademark problems businesses face as they attempt to expand globally, as well as the increasing importance of the Internet for global IP law).

The symposium will be held on the Penn Law campus in Philadelphia, and will run from approximately 10:00am - 3:00pm.

PIPG would like to thank Jones Day for its generous support.

The full schedule is as follows:

10:00: Check-in and breakfast

10:30-12:00: Panel 1
“Trademark Use in Virtual Environments”
Moderator: Prof. Christopher Yoo
• Bryce Coughlin, Steptoe & Johnson
• Kevin Goldstein, Stradley Ronon Stevens & Young
• James Grimmelmann, New York Law School
• Sharon Marsh, U.S. Patent & Trademark Office

12:00-12:30: Lunch

12:30-1:15: Bret Parker, VP, Chief Trademark & Copyright Counsel, and Asst. GC, Wyeth
"View from the Corporate Frontline: Practical Thoughts on the Benefits and Pitfalls for Brand Owners in the Global Online World"

1:15-1:30: Break

1:30-3:00: Panel 2
“Trademark Protection in a Globalized World”
Moderator: The Hon. Kent Jordan
• Glenn Gundersen, Dechert
• Marcia Paul, Davis Wright Tremaine
• Jef Pearlman, Public Knowledge
• Martin Schwimmer, Moses & Singer
• Peter Vogl, Jones Day

If you are a practicing attorney or a law student and you would like to attend, please contact me at karenac@law.upenn.edu. There are 3.5 CLE credits available for this event.

VIDEO: FCC Commissioner Deborah Taylor Tate at Penn Law

In December, FCC Commissioner Deborah Taylor Tate gave a presentation entitled "From the Boardroom to the Classroom: Piracy Impacts and Solutions." Her talk was sponsored by Penn Intellectual Property Group and the Center for Technology, Innovation, and Competition.

Commissioner Tate focused on industry innovations to guard against piracy, explained the effect of "net neutrality" on those efforts, and defined what the government's role should be in ensuring that intellectual property rights are not infringed upon in the digital communications age.

Video of Commissioner Tate's presentation is available here.

It's All About Change: Fairey v. AP

Did Shepard Fairey, creator of the ubiquitous images that formed a central part of the Obama campaign, change a photograph by an Associate Press photographer enough to qualify for a fair use defense?

A federal judge in Manhattan will ultimately decide the issue, but both images are posted here so that you can draw your own conclusions (courtesy of the NY Times). Fairey has asked the court to grant a declaratory judgment against any potential copyright infringement claims advanced by the AP.

More about the case can be found via the New York Times, WSJ's Law Blog, and Am Law Daily.

International: Software Pirates - where do they all come from?

The Pirate Bay has just released a Google-powered map that tracks the number of IP-infringing connections per country.

The TorrentFreak's "pirate bay map" records bittorrent communication, logging the locations to and from which its trackers are transferred. The map indicates the origin of the users who are connecting to its trackers, and it updates in real time.

According to the map at the time of this posting, the leader in traffic is China. The map indicates that 33% of all connections to the trackers originate from the .cn domain, which equals about 7 million peers. Considering that the site is officially blocked in China, these numbers are even more impressive.

Other Asian locations host massive amount of users as well, with 5.9% of connections coming from Taiwan and 4.2% from Japan.

The United States is a home to 8% of the users, and Sweden - the home of the Pirate Bay - hosted over 1% of them. Sweden had about 250,000 peers, which--out of a population of nine million --is not nearly as bad as some of the other countries.

In Europe, Spain has been the leading country, owning a little less that 5% of the connections.

The map is arguably only the beginning of a larger project to provide detailed statistics on the tracker’s users.

Read more here and here.

International: Pirates in Britain will not be disconnected from the internet

One of the new strategies of the music industry internationally is to find new policemen to enforce its rights in the digital world.

ISPs are extremely appealing candidates in this regard, since they can disconnect users from the Internet. Using ISPs can prevent repeated infringements and deter new ones. The music industry lobbied aggressively in various countries to enact a law that will force ISPs to disconnect repeated infringers from the Internet. The BRI, which represents the British record industry, has almost succeeded in passing such legislation in Britain, as the British government had seriously intended to compel internet companies to cut off customers who ignore warnings not to download music and video files illegally.

However, an interview with The Times with Mr. David Lammy, the British Intellectual Property Minister, revealed that the Government had ruled out creating a law. He questioned whether such a law can actually be possible.

While the music industry expressed disappointment of the reverse turn, ISPs--who consistently objected the heavy hand of the legislator being involved in their business--expressed satisfaction, saying that it is impossible to attract people to use the Internet and at the same time to scare them away.

Seven million British share files illegally every year, and the damage to the industry is said by the industry to amount to £180million a year.