29 May 2011

CopyPorn


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Image: Bloke Having A Fag Outside A Sex Shop by Mike Serigrapher on Flickr

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“Are porn films copyrightable and hence covered by copyright protection?” a friend asked me yesterday. His concern was that “immoral” films often face statutory limitations with respect to their distribution.

“That is a very good question”, I thought and gave him a short answer.

Basically, my answer relied on that pornographic films are works in the first place, more precisely – cinematographic works and that as such they will very likely qualify for copyright protection. I further opined that any limitations to their distribution should not prejudice their character as works of copyright and hence their protection under copyright law.

In this blog post I will give a more profound answer thereby covering the Berne Convention as well as the national laws of three countries. I chose those countries because they not only have a long-established and prominent copyright protection, but they have also a well-developed entertainment industry and, as a part thereof, production and consumption of pornographic films.

Good, let me will start with the

Berne Convention

Article 2 of this treaty, also referred to as the mother of copyright, reads as follows

(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Convention’s Article 2 bis leaves it to the members states to decide whether certain categories of works are to be protected, but limits the categories only to (i) speeches, (ii) lectures and addresses and (iii) collections of (i) and (ii).
Anyway, the convention remains silent on the question whether moral deliberations should prevent a work from copyright protection.

United Kingdom

The United Kingdom (UK) ratified the Berne Convention with effect from 5 December 1887. Even though films have since then represented a single branch of copyright works, courts on the British Islands may nevertheless refuse to recognise copyright protection for policy reason such as immorality.
In a somewhat older case from 1916 Younger J ruled that there was no copyright in a film because it constituted a “sensual adulterous intrigue”. The House of Lords has cited this ruling with approval as far back as 1990, though not necessarily in conjunction with pornography.
In the very recent case of Media C.A.T. that involving the copyright infringement in pornographic films, however, Birss QC did not question the copyright character of the pornographic works in suit.

What remains to say is that there is still some doubt as to the exact effect of immorality under UK law. It is unclear whether immoral works lack copyright at all, or that equity will not enforce the copyright.

USA

Although the United States acceded to the Berne Convention as late as 1989, their federal copyright law has always protected motion pictures and other audiovisual works. However, the same has not always been true with respect to pornographic works.
According to the PrawfsBlawg, “obscene” (=hardcore) pornography could not qualify for copyright protection until 1979. It was the Court of Appeals for the 5th Circuit which declared obscene films protected by copyright law. This ruling led to the FBI copyright warnings now found at the start of videotapes or other media carrying a film.

Germany

With respect to the copyrightability of films, the German Copyright Act more or less repeats Article 2 of the Berne Convention. The Copyright Act likewise remains silent on (im)morality driven exclusions of copyright.
However, Article 184 of the German Penal Code reads as follows:

1) Whosoever with regard to pornographic written materials (section 11 (3))

  1. offers, gives or makes them accessible to a person under eighteen years of age;
  2. displays, presents or otherwise makes them accessible at a place accessible to persons under eighteen years of age, or which can be viewed by them;
  3. offers or gives them to another in retail trade outside the business premises, in kiosks or other sales areas which the customer usually does not enter, through a mail-order business or in commercial lending libraries or reading circles;
    3a. offers or gives them to another by means of commercial rental or comparable commercial supply for use, except for shops which are not accessible to persons under eighteen years of age and which cannot be viewed by them;
  4. undertakes to import them by means of a mail-order business;
  5. publicly offers, announces, or commends them at a place accessible to persons under eighteen years of age or which can be viewed by them, or through dissemination of written materials outside business transactions through the usual trade outlets;
  6. allows another to obtain them without having been requested to do so;
  7. shows them at a public film showing for an entry fee intended entirely or predominantly for this showing;
  8. produces, obtains, supplies, stocks, or undertakes to import them in order to use them or copies made from them within the meaning of Nos 1 to 7 above or to facilitate such use by another; or
  9. undertakes to export them in order to disseminate them or copies made from them abroad in violation of foreign penal provisions or to make them publicly accessible or to facilitate such use,

shall be liable to imprisonment of not more than one year or a fine.

What does it mean? It means that porn films are copyrightable under German law, but their distribution, basically to persons under 18, is criminalised.

Conclusion

It appears that pornographic films are capable of attracting copyright protection under the relevant jurisdictions of the United Kingdom, the United States and Germany.
While the UK and the US have interlinked copyrightability with public morality and their courts have certain powers to determine whether copyright should subsist in obscene films, Germany follows a clear-cut approach stating that even pornographic films are copyrightable, albeit their distribution might be subject to morality or other public policy driven limitations.

Want  to tell how your jurisdiction deals with the copyrightability and/or distribution of pornographic works?
Simply use the comment section below.

21 May 2011

Tattooing Copyright


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Image by shelbysdrummond on Flickr

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I guess that it is needless to introduce the character on the image above. He has the image of a scandalous guy and he was featured in more or less such light in the film The Hangover. Did you watch it? I did and found it entertaining.

By the way, do you belong to those eagerly expecting The Hangover Part II? Well, do not be impatient if this blockbuster takes somewhat longer to come in a theater near you.

You will not believe it, if I tell you why this is likely to happen!
Ok, here I go.  The thing is that Mr S. Victor Whitmill, a tattoo artist, claims that Warner Bros

Have Infringed His Copyright In A Tattoo

Yes, you are reading this correct! Well, it is not just some tattoo – it is the tattoo Mike Tyson is wearing on his face and the same arguably worn by an actor in The Hangover Part II. While Mr Whitmill gave its permission to Mr Tyson to lawfully wear the tattoo, this has not been the case with Warner Bros.
The New York Times has brought this amusing story and it truly deserves a read.

Ok, let me address the main question here: can copyright subsist in a tattoo?

Section 102 (a) of the US Copyright Act 1976 states that

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I would say that once Mr Whitmill establishes that his tattoo meets these criteria it will be protected under US copyright law.
What do you think, is this completely impossible? Let us have a closer look at it!

Work

First of all Mr Whitmill will have to prove that his tattoo is a work. I believe this will cause no problems – a tattoo is not different from a painting, which is definitely a (pictorial or graphic) work.

Fixation

Fixation is an essential criterion for protection under US copyright law. Section 101 of the US Copyright Act gives us the definition of what fixation is:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Having read the definition, would you express any doubts as to whether Mr Whitmill’s tattoo is sufficiently fixed in Mike Tyson’s face? In my view, one could hardly speak of a tangible medium that is more stable than that gentleman’s visage.

Originality

Originality is the third main criterion for the copyrightability of a work. It is not defined in the Copyright Act, but can be derived from the plenty of judicial authority.
If the tattoo is a Maori-inspired design, as the NYT newspaper article tells us, can Mr Whitmill have authored it then? Following the leading case of Feist v Rural, Mr Whitmill’s tattoo shall be considered original once he establishes that

the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity

Hmm, could Mr Whitmill succeed on this point? In my view originality will be the very issue, provided, however, that the matter will be eventually fought before a Court of competent jurisdiction.

Final Thoughts

Despite my legal interest in the copyrightability of a tattoo, I would ask the same question as did the Harvard Info Law Blog:

Would this be a lawsuit, let alone a front-page NYT article, if the accused infringer wasn’t a big movie studio with a tentpole summer movie on the brink of release?

What do you think?

20 February 2010

Templates designed to capture a physician-patient encounter are not copyrightable


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The case of Utopia Provider Systems vs Pro-Med Clinical Systems was recently referred to the United States Court of Appeal for the eleventh Circuit. The claimant Utopia had developed paper templates to capture a physician-patient encounter, and had obtained a Certificate of Registration as “compilation of terms” with the US Copyright Office. The claimant had also concluded a license agreement with the defendant Pro-Med with respect to the templates. Somewhen the defendant began to copy the templates and to create derivative electronic files thereof and has eventually ceased to pay the contractually agreed royalties. No wonder, the claimant sued for copyright infringement and the defendant, not surprisingly, argued that the templates were not copyrightable because they were blank forms that did not convey information.

The District Court for the Southern District of Florida, being the court of first instance, dismissed claimant’s action and found in favour of the defendant.

The Court of Appeal for the eleventh Circuit affirmed the District Court’s ruling and delivered a reasoning based on its previous judicature.

The Court started with stating the statutory requirements for copyrightability in 17 U.S.C. § 102(a) and cited the Supreme Court’s ground-breaking decision in Feist vs Rural, according to which a work under copyright law need possess at least some minimal degree of creativity in order to be original and hence copyrightable. The Court’s relevant precedent as to whether the templates in suit were copyrightable was its previous decision in Clarke Checks. Accordingly, blank forms which “do not convey information” or contain original pictorial expression were not copyrightable. The relevant test for copyrightability of the templates, therefore, was whether their forms “conveyed information”. The Court went then further citing the Second Circuit which in Kregos vs Associated Press offered examples of works that “conveyed information” opposing them to such that did not. Accordingly, and as the originality claimed in the templates in suit was in the “selection and arrangement of their terminology”, the Court did not find that such selection and arrangement conveyed information, wherefore they were not sufficiently original and hence failed to attract copyright protection.

Coming to my analysis, it is positive that a higher court in the US has fortified its authority in barring trivial templates and forms from copyrightability. Copyright law is, in the sense of the ruling in Feist, supposed to grant a limited monopoly over works of creativity. There is nothing creative in non-informative templates and their unauthorized use should not be referred to copyright law, but rather to provisions relating to unfair competition.

 

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