Pop Group Anthrax Sued for Ripping Off a Hannuka Sweater

February 8, 2016
Anthrax photo by Jonas Rogowski

Anthrax Photo by Jonas Rogowski

Anthrax is an American heavy metal band from New York City. It was formed in 1981 by guitarist Scott Ian and bassist Dan Lilker. The group was considered one of the leaders of the thrash metal scene during the 1980s. Of the “Big Four” thrash metal bands (the others being Metallica, Megadeth and Slayer). The name was chosen as being “sufficiently evil”.

Anthrax were the only thrash metal band from the East Coast. As of 2014, the band has released ten studio albums, a number of singles and an EP with American hip hop group Public Enemy. According to Nielsen SoundScan, Anthrax sold 2.5 million records in the United States from 1991 to 2004, with worldwide sales of 10 million.

Cummin's Hannukka sweatshirt

Aaron Cummins, claims he created the original design for the Ugly Hanukkah Sweater in 2012 and has exclusive copyrights to it, but that it’s being ripped off by others to promote the famous Anthrax rock band. According to his lawsuit, the sweater’s design was registered with the U.S. Copyright Office in 2013, and has since been marketed and sold through his Detroit company, Wet House.

Cummins claims that sometime around September, Cummins’ Hanukkah sweater design started showing up on the Internet as an Anthrax sweatshirt and continues to be sold online at Rockabilia.com as an Anthrax sweatshirt.

More details of this strange copyright infringement case may be found here.


The Diary of Anne Frank ®   – Trademark abuse

January 10, 2016

trademark abuse

In addition to adding Otto Frank as an author of Anne Frank’s diary in an attempt to keep the work out of the public domain, some bright lawyer working for the Foundation has successfully filed the book title as a trademark.

The purpose of this is the same. It is to prevent the book from entering the public domain. Trademarks may be renewed for ever. The ramification of this trademark registration is that only books originated or licenses by the Anne Frank Foundation can be titled The Diary of Anne Frank or anything confusingly similar.

No doubt the foundation would argue that this is to protect her integrity as an author and to prevent others from hacking about with the content. This is surprising as apparently they now believe that her father her father Otto did sufficient reworking to be considered as a co-author.

I accept that the title of a book can be an indication of origin and is inherently distinctive. The problem I have is that this development effectively makes copyright unlimited and prevents anyone else from publishing the book unless they give it a totally different name such as the Secret Diary of Adrian Mole aged 13 3/4, Anne of Green Gables, Frankenstein or something sufficiently different from the Diary of Anne Frank®, that no one could possibly be confused.

Since this is flagrant trademark abuse, it should be banned on policy grounds. There are different ways for doing this. I think that the trademark could have been considered as generic for books having the content of the diary since the diary is in the public domain, or it could have simply been refused on the grounds of ‘ordre public’ since public policy is for books to eventually enter the public domain a set period of time from the author’s death.

It would be churlish to point out that using actuarial tools to calculate the real time worth of possible sales in 70 years after’s one death is not actually an inventive for anyone to write anything. It would be insensitive to point out that regardless of Otto’s reasons for whatever authorship contribution he actually had, Anne Frank was not writing to publish at all.

For more on the difference between names and contents, what names are called and what works of literature may be called, it is worth considering that the white knight in Lewis Carroll’s chess novel Through the Looking Glass parodies a poem by Wordsworth and anticipates Wittgenstein in a song whose name is called Haddocks’ Eyes, but whose name is The Aged Aged Man. The song itself is called Ways and Means and is A-sitting on a Gate.


Copyrights and Wrongs

November 19, 2015

all animals

In Orwell’s novel 1984, the Seven Commandments were eventually distilled into “All animals are equal but some animals are more equal than others“.

Copyright is supposed to be a one size fits all regime, under which all creative works are protected for a fixed period, currently 50 or 70 years from death of the author depending what the creative work is, when it was created and where in the world the copyright is applied.

The argument for this veeeeeerrrrrry long period is that without it, creative types wouldn’t exert themselves to create and the world would be a less colourful place to live.

The simple accounting procedures used by actuaries to calculate the present day value of income in 50 or 70 years implies that this justification makes no economic sense, even if we one buys the assumption that the created work would not have been created were it not for the copyright protection.

In the Copyright Term Extension Act of 1998, the United States harmonized their  copyright term with Europe’s. The Act is known as the Mickey Mouse law, since it prolonged the term of valuable copyrights held by the Disney corporation.

All creative works, for those dawdled on a napkin or the back of an envelope, through private correspondence, songs that no-one listens to, books that no-one reads,  through to the international best sellers and texts that become part of high school curricula have the same protection term. Unlike designs, trademarks or patents, there are no registration requirements and no extension fees.

Then there are the exceptions.

diary

The Anne Frank Foundation claims that Otto Frank, Anne’s father was a coauthor of the diary and so it should remain copyright protected until 70 years from his death in 1980. They don’t argue that this will provide an incentive to Ms Frank to continue writing, or even that the diary which was never meant for publication was written with copyright in mind. They claim that copyright is necessary to protect Ms Frank’s character’s integrity.  They don’t explain how Otto Frank’s apparently significant censorship, editing and rewriting, after Anne Frank’s murder did not contravene her moral rights or right to privacy.

mein kampf

There has been discussion on keeping Mein Kampf copyright protected to prevent its dispersion. Odd really, since Hitler never had a problem with it being widely available. If one wants the holocaust to be studied, both Anne Frank’s diary and Mein Kampf should be available. If one wants to prevent Ultra Right Ring nationalism from recurring in Austria and Germany, one can prevent neo-Nazi groups from meeting. I don’t think that the British Red Cross is still gaining from royalties from Mein Kampf but the fact that in 1939 they did should make one wary of statements and reports from charitable organizations claiming apolitical objectivity.

Copyright exceptions are more common than one might think.

the little prince

Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince” is the third most popular novel in the world, translated into over 250 languages. More than 80 million copies have been printed. On 1st January 2015 “The Little Prince” entered the public domain 70 years after Antoine de Saint-Exupéry’s death – except in France.

In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. In France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045.

to die

The there is the Peter Pan bequest. Peter Pan’s copyright should have expired 70 years after Barrie’s death in 1937. However, J. M. Barrie bequeathed all the rights to Peter Pan to the hospital in 1929 and they have provided badly needed funds ever since. The British Parliament legislated a lex specialis to keep the copyright protection going.

pope

Concerned with commercialization of the Pontifical character, the Vatican passed a special copyright law to prevent others from referring to goods and services as being Papal. They apparently seek to establish and safeguard the name, image and any symbols of the Pope as being expressly for official use of the Holy See unless otherwise authorized.

Seehttp://www.catholicnewsagency.com/news/holy_see_declares_unique_copyright_on_papal_figure/


Monkey Business

September 30, 2015

Monkey business

In 2011 British wildlife photographer David Slater was on the island of Sulawesi, following a troop of macaques. He set up his camera and waited. Suddenly, a cheeky monkey grabbed the camera, smiled into the lens and pressed a button. The photographs that followed went on to become internationally known – featuring in a wildlife book by Mr Slater.

selfie

Now, animal rights organisation People for the Ethical Treatment of Animals (PETA) has taken legal action in the United States on the monkey’s behalf (naming it Naruto), claiming that the animal owns the copyright in the successful photographs and should therefore reap the benefits financially.  Slater contends that he, in fact, was the brains behind the set of photographs of the monkey he named Ella. “A monkey only pressed a button of a camera set up on a tripod,” he argues. “A tripod I positioned and held throughout …”

Meanwhile PETA’s argument is that it is not the person who owns the camera that owns the rights but the being (in this case, a monkey) who actually took the photograph. The case will be decided by the US federal court in California.

For more details, and their legal analysis, see the IPKAT here.

COMMENTS

I don’t think this is a laughing manner.

PETA believes that all animals have feelings and therefore rights. They are not ours to eat, wear, experiment on, use for entertainment or abuse in any other way. The basis for their perspective on animal rights is that animals suffer and have a right to live free from suffering and pain.

I don’t agree with their agenda, but I can understand their logic. I have at least one vegan friend who won’t wear leather shoes. As long as they merely demonstrate and persuade nubile young actresses to show their pubic fur in their campaigns against the fur industry, I have no problem.

However, by claiming IP Rights for macaques, PETA is going from a very radical position to an even more radical one.

This would not be serious except that there have been judges willing to see apes as having rights.

In 2013, an organisation called the Nonhuman Rights Project filed a lawsuit in the New York Supreme Court on behalf of four chimps kept for research by Stony Brook University. The eventual conclusion of Justice Barbara Jaffe on 27 April 2015 was that they were not to be treated as property, but as legal persons. Not as persons with full human rights, but as persons with a right not to be held in captivity and a right not to be owned.

It is not inconceivable that some left-wing judge could recognize animals as having the right not merely not to be owned, but also the right to themselves own property. From here, the jump to allowing ownership of non-physical property, such as intellectual property, is not so large as to be beyond comprehension.

Whilst this sort of thing is happening, and California is a center for this type of thought, I note that Islamic fundamentalists have decided that they can go around executing and raping people. They are rejecting Western values in favour of some highly extreme interpretation of their religion. Let’s not provide them with additional evidence that Western Liberal Democracies have gone completely nutty.

It may also be worth remembering that the selfie is not the highest form of Western expression.


Random House Loses Copyright Case to Goebbels Estate

July 20, 2015

Goebbels Diaries

The estate of notorious Nazi propaganda minister Joseph Goebbels won a lawsuit against Random House publishing company in Munich last week.

The case was brought against Random House Germany by the estate because royalties were not paid out for the use of Goebbels’ personal diaries in a 2010 biography written by historian Peter Longerich. The biography was originally written in German and was republished in English by Penguin Random House UK and its imprint Bodley Head.

 

The Newsweek Report may be found here. Versions in the Israel press are slightly different.

COMMENT

This is far from the first copyright argument related to Goebbels’ diaries. When they  were first discovered in the early Nineties, different British papers published extracts. I believe the Mirror Group paid royalties but the Sunday Times refused to.

Substantively, Random House showed creativity in suggesting that the royalties be paid to Holocaust Survivors. I can understand why Nazis sympathizers may find the suggestion inappropriate. I suspect that the same considerations that caused Menachem Begin to oppose German reparations to the State of Israel might make more than once survivor feel uncomfortable with the idea as well.

I think that Random House’s arguments that the copyright was removed along with other possessions after the War is an interesting one. Jewish courts can also appropriate private property in the principle known as הפקר בית דין הפקר. That as may be, if the German court did not accept the argument and the State of Barvaria has shown no interest in contesting their rights, the legitimate heirs of Goebbels are entitled to seek retribution. Unlike Goebbels, I believe that IP and other property rights have to be recognized regardless of the political leanings, race and nationality of the owners.

Random House’s arguments regarding scholarly access, etc. have more than a little merit. This is one reason that I am against the present long copyright periods, and think that copyright should be for, say, 10 years, extendable on payment of a fee, for a second ten year period. This is also probably why rather than writing books I write a blog and am happy for anyone to reproduce or quote, so long as they attribute.

 

 


Amad Arabiyah Wins Injunction and Damages from 13 Bootleg Distributors.

June 24, 2015

Arab Music

Amad Arabiyah Music Management and Distribution LTD sued 13 different shops in the Nazareth District Court. The shops had sold Music CDs and had stocks of pirate compact disks and were accused of contributory copyright infringement. Due to the similarity of the cases and the common plaintiff, the cases were combined into one case.

The original production of the albums was by Digital Sound LTD and Aalem en-Fan LTD, both Egyptian companies, who transferred the rights to the plaintiff. The logos and names of the Egyptian production companies appeared all over the compact disks and their packaging. In the original case as filed, the Egyptian production companies appeared as formal complainants, but the judge ruled that their names could be deleted from the statement of case since Amad Arabiyah Music Management and Distribution LTD had an exclusive license to distribute the compact disks and to sue for copyright infringement.

Amad Arabiyah Music Management and Distribution LTD sent a couple of investigators who purchased fraudulent disks in each shop and testified that the shops had stocks of such disks. They claimed 100,000 Shekels in statutory damages against each shop.

Amad Arabiyah Music Management and Distribution LTD considered that the full statutory damages should be awarded as the infringement was widespread knowing commercial infringement over a 35 year period that was profitable for the defendants. The shops considered the charges trivial and unsubstantiated and denied the standing of the plaintiff.

The court found the defendants guilty ruling that the recording company that produces music disks enjoys copyrights independently of the singers and composers. In this instance, the recording company transferred its rights to the plaintiff. The defendants sold copies of these compact disks from a company that was not authorized to distribute them, and so the disks are infringing copies. In the circumstances, the defendants knew or should have known that the disks infringed copyright, or at least should have made inquiries. Consequently an injunction was awarded against the defendants that requires them to destroy and forbids them from selling these compact disks. Each of the thirteen defendants has been fined 10,000 Shekels and has to pay 7500 Shekels in legal fees.

Civil Action 33968-05-11 Amad Arabiyah Music Management and Distribution LTD vs. Ahmed son of Mustafa Anbatawi et al., 13 Judge Atrash, 6 May 2015.             

COMMENT
I can see the sums awarded being appealed but the fact that there is infringement is clear. Although this particular proceeding relates to Egyptian music sold in Arab shops, I think that similar offenses occur in the Jewish sector, including Hassidic music traded in ultra-Orthodox areas. I am publishing this ruling in the hope that it will encourage others to enforce their rights and that those who do not see this as a kind of stealing because they are not sophisticated enough to understand the concept of rights in the abstract, should think again.


Israel Court Issues Injunction against ISPs and Recognizes Contributory Copyright Infringement

June 1, 2015

ISP

NMV Entertainments LTD (formerly NMC Music LTD) et al. records Israel music and represents some of the larger foreign music canneries. They have sued Bloomberg Inc. and various Internet Service Providers (ISPs) including Bezeq International, Partner, 013 Netvision, 012 Smile Telecom, Hot-Net Internet LTD and Aharon Perfori (then the owner of Unidown, which was subsequently transferred to Bloomberg).

Unidown is a limited company incorporated in the Seychelles. The issue in question is access to the Unidown and Downsong websites as found at http://www.unidown.co.il and http://www.downsong.net which serve as a supermarket of music that enable the public to download songs without any royalties being paid to the rights holders.

The plaintiffs applied for the websites to be closed down, 150,000 Shekels in statutory compensation without proof of damages (the amount limited to minimize the court fees), and legal fees to be carried by the defendant, and most significantly, that the various internet service providers (ISPs) block access to the websites.

The plaintiffs alleged that the primary infringing permitting website was a straw company and that closing it down would not stop the service being provided. For reasons of utility, the ISPs were a legitimate target. In addition to legally constructing cases of indirect infringement, the plaintiffs accused them of Unjust Enrichment.

Bloomberg Inc argued that the website was merely a search engine that operated worldwide in seven languages and that offered four features: (i) searching and direct listening to musical content from YOUTUBE, (ii) Finding relevant information from Wikipedia, (iii) Creating a playlist and (iv) searching for musical content and allowing consumers to locate and download such content from third party websites. Since three of the four features were not under challenge, they felt that the attack on their website was excessive.

Judge Gidon Ginat of the Tel Aviv District Court acknowledged that the infringer who accesses copyright infringing material via a website and downloads it to his computer is the actual infringer, but considered that the website owners are responsible for contributory infringement in that they enable end users creating copies and reproducing copyright material.

In this instance, the copyright owners have pursued the internet service provides arguing that where infringement is being conducted on two separate websites, the Internet Service Provider is responsible for encouraging or at least aiding abetting copyright infringement.

The Court ruled that website UNIDOWN is nothing more than a platform for downloading copyright infringing copies that are discovered by search engines. Unidown converts YOUTUBE playable content into media that can be downloaded and saved as MP3 format files. Whilst it is certainly the case that the downloaders themselves are the primary infringers, the website owners that allow the links are contributory infringers in that they facilitate the downloads.

The Court concentrated on Unidown, also available as .com and with other parallel sites, after the plaintiffs abandoned Downsong after failing to show a link between them and Unidown. Additionally, the court was willing to act against the ISPs where the identity of the site owner was concealed, but with Downsong this wasn’t the case. Consequently Judge Ginat did not rule regarding blocking access to Downsong but did note that this ruling did not affect the plaintiff’s rights to take legal steps against that company.

As to Unidown, Judge Ginat ruled that the site should be taken down and that Bloomberg should pay 100,000 Shekels in statutory compensation.

Judge Ginat relied on UK precedents, including Judge Arnold’s rulings in Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others [2013] EWHC 3479 (Ch); Twentieth Century Fox and others v British Telecommunications plc [2011] EWHC 1981 (Ch);Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch); EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch); Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch) and Justice Birss’ ruling in Twentieth Century Fox Film Corporation v. Sky UK Ltd [2015] EWHC 1082 (Ch).

Judge Ginat noted that in an Appeal to the Israel Supreme Court, (Appeal 447/07 Mor vs. Barak ITTT (1995) and Bezeq Benleumi P.D. 63 (3) 664 (2010)) the Supreme Court refused to fulfill the lacuna in the Law and to grant an injunction but called on the Knesset to legislate. However, since that case related to the rights of anonymity, it was different and wasn’t binding case-law, and since five years had passed without the Knesset addressing the issue, Ginat did not see fit to wait for the legislative to do their job. In addition, Bloomberg should bear legal costs of 50.000 Shekels, and, in an interesting wrinkle, it seems that as Partner argued that it was unjust to award legal costs against the defendants, Judge Ginat ruled that they alone should bear the legal costs of 34,000 Shekels, and the other defendants were not required to bear legal costs. However, should Partner choose to present coherent legal arguments, they would not be penalized for so doing and might even prevail.

Civil Ruling 33227-11-13 NMC United Entertainment LTD et al. vs. Bloomberg et al. Tel Aviv District Court by Judge Ginat, 12 May 2015

 

COMMENT

The responsibility or otherwise of ISPs to police the Internet is a hot issue. However, it seems reasonable to issue injunctions against them on a case specific basis.

Personally, I am in favor of a shorter and more liberal copyright regime, but think that Israel does have an obligation to uphold international standards. I am not sure, however, that Judge Ginat is correct that there is a lacuna for the Israeli legislative to address and their failure to do so authorizes him to judicially create contributory copyright infringement or aiding and abetting copyright infringement. The Israeli legislature passed a brand new copyright law in 2008. Even back then, the issue of ISPs was established and there was US pressure on Israel. See here for example. Israel was not and is not a signatory to the treaties that require forcing ISPs to police the web.  It seems that the Knesset intentionally decided not to include this lacuna in their legislation. Since CBS vs, Amstrad, providing the technology for infringing (back then, it was a tape to tape double cassette deck) has not been considered culpable in the UK.

Is this ruling a case of judicial legislation? It seems to be.  I am against judicial activism preferring that judges leave legislation to the democratically elected parliament. I note that even in the US, recent decisions have overturned the judicial doctrine of incitement to infringe or contributory infringement of patents.


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