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The Batmobile Is A Character Entitled to Copyright Protection

The Batmobile is a character and therefore entitled to copyright protection, at least according to the 9th Circuit Court of Appeals. Judge Sandra Ikuta quoted the famous movie in affirming a ruling against a manufacturer of replica Batmobiles. “As Batman so sagely told Robin,” she recited, “in our well-ordered society, protection of private property is essential.”

Defendant Mark Towle, owner of Gotham Garage, sells replica Batmobiles based on the 1966 television series and 1989 movie. In 2011, DC Comics, creator of the Batman character, sued Towle for copyright infringement. A district court judge ruled in favor of the well-known comic book publisher.

On appeal, Towle’s lawyers argued that automobiles are not subject to copyright protection because they are not explicitly listed in the statute.  And even if they were, his lawyers contended, DC Comics did not own the copyright in the specific Batmobile versions as they appeared in either the 1966 or 1989 production. The Batmobile has taken on many different forms over the years and the allegedly infringing replica looked substantially different than any particular depiction of it in the comic books.

First, the court disagreed that the Batmobile could not be copyrighted, ultimately considering it a character capable of receiving copyright protection rather than a mere car. In doing so, they relied on 9th Circuit precedent, as well as a three-part test derived from those cases: (1) the character must generally have “physical as well as conceptual qualities; (2) the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears; and (3) the character must be “especially distinctive” and “contain some unique elements of expression.”  The Batmobile passed every prong of this test, with its unique and recognizable “bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems.” There was a “consistent theme” throughout the comic books, series, and movie, and for that reason, the Batmobile was entitled to copyright protection.

On the issue of whether DC actually owned a copyright interest in the Batmobile as it appeared in the 1966 and 1989 productions, the court found for DC because it is the original creator of the character, and maintains an exclusive right to “authorize others to prepare derivative works based on their copyrighted works,” a right upon with Towle infringed.

This polarizing decision evokes the classic debate amongst intellectual property scholars and legal professionals: how far should this country extend its copyright laws? Are we effectively incentivizing artists and creators or rather, stifling innovation? While the answers to these questions remain unclear, this case certainly recognizes a strong protection in certain characters and designs that have attained notable fame in popular culture. Moving forward, it appears as though rights holders have a new theory of copyright protection upon which they can rely, especially when seeking to protect intellectual property across different consumer platforms. Not only is one able to protect a design that has “readily identifiable and distinguishable traits,” but one can also effectively enjoin someone from creating any replicas of that design, no matter how flattering the imitation may be.

 

Find the opinion here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/23/13-55484.pdf

By: Cara Adams, ’17

 

DMCA Exemption Granted in Wake of Volkswagen Emissions Scandal

News recently broke that Volkswagen released an estimated 11 million diesel-powered vehicles worldwide equipped with software capable of evading emissions testing. Some argued that Volkswagen’s obfuscation would have been more easily detected if the vehicle software was not protected under the Digital Millennium Copyright Act (DMCA). The DMCA prohibits those outside of the vehicle manufacturing process from accessing the technological protection measures inside the vehicle software. This prevents individuals from determining whether a software modification—such as Volkswagen’s—has occurred by making it a copyright violation for individuals to circumvent the software. Thus, proponents of the exemption claim that allowing individual vehicle owners to access the software could allow for detection of this type of error.

The Volkswagen story came to light at a particularly opportune time. The Librarian of Congress recently approved an exemption to the provision of the DMCA that prohibits circumvention of technological protection measures in automobiles. When the ruling takes effect in a year, it will no longer be a violation for car owners to examine the software in their own vehicles for the limited purposes of “diagnosis, repair, or modification.” Prior to the Volkswagen disclosure, the EPA sent the Copyright Office a statement of its opposition to the exemption, fearing the exemption would increase the risk that vehicle software could be modified by car owners in ways that increase emissions and violate the Clean Air Act. The Volkswagen emissions scandal shows that while there are certainly risks in allowing individuals to engage in performance-affecting alterations, the bigger threat may actually be posed by the large auto companies capable of manufacturing vehicles with built-in software modifications

 

The Library of Congress decision can be found here:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-27212.pdf

For more information on the effect of the ruling on auto software, visit:

http://arstechnica.com/tech-policy/2015/10/us-regulators-grant-dmca-exemption-legalizing-vehicle-software-tinkering/

By: Janet Olsen, ’17

Can Monkeys Own Copyright? PETA Says Yes

Many are familiar with the “Monkey Selfie,” a widely circulated photo of a monkey named Naruto grinning broadly at the camera. When wildlife photographer David Slater left his camera unattended with a group of crested macaques, Naruto and his fellow simians snapped a series of selfies, including the famous shot. Naruto is once again making headlines, thanks to People for the Ethical Treatment of Animals (PETA).

PETA has filed a lawsuit against Slater alleging that he infringed Naruto’s copyright by profiting off sales of the photo. In addition to including the photos in his book, Wildlife Personalities, Slater has been selling the photos on his website. PETA argues that Naruto is the rightful copyright owner of the photo. In addition to stopping Slater from further commercial exploitation of the photo, PETA wants all proceeds from sales of the photo to directly benefit Naruto and his fellow endangered crested macaques living in an Indonesian reserve. Slater has called the lawsuit ridiculous and accused PETA of attempting to damage his image.

While this may sound like a frivolous lawsuit, especially given PETA’s notably litigious past, it raises interesting questions in the realm of copyright law. First, can animals even own copyright? Historically, the answer is no. Copyright protects original works of expression fixed in a tangible medium by affording legal protection to the “author” of the work. The Copyright Office has previously found that animals cannot be credited as authors under copyright law, even though the Copyright Act fails to include language limiting copyright owners to “humans.” Since animals are unable to create a copyrightable work, a work technically “created” by an animal can never be copyrighted. Instead, the work immediately falls into the public domain, meaning anyone can use the work. What does this mean for Naruto? Basically, even though Naruto created the photo by snapping the selfie, the monkey cannot be considered to be a copyright owner under current law.

Interestingly, PETA’s lawsuit is not the only thorn in Slater’s side. He is also battling Wikipedia for sharing the published Naruto photo online without Slater’s permission. Wikipedia insists that the non-copyrightable photo exists within the public domain. On the other hand, PETA asserts the photo is neither within public domain nor owned by Slater, but belongs solely to Naruto. Whether PETA will prevail in its latest animal crusade remains to be seen.

 

PETA’s complaint can be found here.

By: Stephanie Krause, ’17

“Happy Birthday to You” Copyright Invalidated

For 80 years, Warner/Chappell Music Inc. has collected millions in licensing fees based on its claimed right to the lyrics of “Happy Birthday to You.” However, the federal District Court recently ruled that Warner/Chappell never owned a valid copyright for the song. The plaintiffs, a group of filmmakers and artists, challenged Warner/Chappell’s copyright claim in 2013 after they had paid the company licensing fees in order to use the song. Their successful motion for summary judgment brought an end to Warner/Chappell’s $2 million annual licensing business.

The Copyright Act allows individuals who create artistic works an exclusive right to those works for a certain period of time. In 1893, Mildred and Patty Hill wrote the song “Good Morning to All,” whose original melody was rearranged to create “Happy Birthday to You.” Subsequently, in 1935, the Clayton F. Summy Company registered the copyrights. However, the court concluded these registered copyrights only included the melody, not the lyrics. Therefore, when Warner/Chappell acquired the rights from Summy in 1988, Summy had been asserting rights to the whole song and collecting royalties without a valid copyright.

The court found that Warner/Chappell is not the rightful owner of the rights to the lyrics of “Happy Birthday To You.” Once the court decided there was insufficient evidence to prove Warner/Chappell owned the copyright in the lyrics, the court was unable to resolve the question of who actually does own the copyright in those lyrics. Thus, while it is clear Warner/Chappell does not own the copyright, it is unclear who does.

This ruling illustrates an ongoing challenge in the field of copyright law. The issue arises when a work’s copyright lasts so long that it can be very difficult to find the author and the public consequently is unaware of who to pay in order to use the work legally. The 1998 Copyright Term Extension Act extended the copyright protection term to a range from 95 to 120 years. This extension increased the importance of due diligence when it comes to properly accounting for the chain of title of a copyrighted work. The chain of title seeks to protect all original works by establishing that there is appropriate documentation in relation to rights assigned or licensed by the work’s creator. Successfully establishing “chain of title” requires a clean paper trail from the current owner back to the original owner of the copyrighted work. This ruling therefore cautions attorneys to carefully check over a work’s chain of title before clearing the work for another’s use.

 

Link To Full Opinion:

http://www.shadesofgraylaw.com/media/00065570.pdf

By: Banu Naraghi, ’16

A Decision That’s Making Record Companies “Go Crazy”

A viral video featuring a dancing baby eventually pitted Hollywood and Silicon Valley against each other in a clash over the procedural requirements of federal copyright law. The 9th Circuit Court of Appeals recently decided Lenz v. Universal Music Corp., after ongoing litigation that began when Stephanie Lenz protested Universal’s request that she remove a video from YouTube containing a portion of the Prince song, “Let’s Go Crazy” in the background. The court held that copyright holders must consider the fair use doctrine before sending takedown notifications under the Digital Millennium Copyright Act (DMCA).

Title II of the DMCA provides a limitation on the indirect copyright liability of web services arising through infringement by the services’ users. In order to qualify for the exemption, a service provider like YouTube must not have actual knowledge of or profit directly from copyright infringement of users. In addition, a provider like YouTube must promptly respond to notifications that hosted content is infringing by “act[ing] expeditiously to remove” the content. Lenz claimed that Universal, acting on behalf of Prince, abused the DMCA takedown system by “knowingly materially misrepresent[ing]” that her video infringed Universal’s copyright, for which the statute provides penalties. Specifically, Lenz accused Universal of ignoring the possibility that the fair use doctrine permitted her use of the Prince song.

Lenz was represented by the Electronic Frontier Foundation, an organization active in digital rights issues. On appeal, Google, Twitter, and Tumblr submitted amicus briefs in support of Lenz, while the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) submitted briefs for Universal. The decision is mostly a win for the tech community, as the court interpreted fair use as its own category of non-infringing activity.

The decision wasn’t all bad news for Universal. The court specifically acknowledged that sending takedown requests via automated detection software could still comply with the DMCA.  Media companies increasingly use programs like this to fight the constant stream of online pirated content. If the software finds content on a site like YouTube that is an exact replica of copyright-protected audio or video files, this could conceivably raise a presumption against fair use.

Both parties, left partially unsatisfied, have filed petitions for rehearing en banc. In the meantime, questions remain surrounding the practical implications of the ruling. While rights holders must consider fair use, the court was content with a “subjective good faith belief” of infringement, which it was “in no position to dispute.” Universal may have lost this case because it admitted the takedown notices were handled by an assistant in the legal department, whose process of searching for video clips and determining which to contest did not include any mention of fair use. The court stipulated that fair use consideration must be more than mere “lip service,” but future cases will inevitably grapple with what distinguishes lip service from a good-faith belief (“our lawyers thought about fair use but we still find your video to be infringing”). Fair use is a fluid doctrine that varies widely with context – without further guidance, requiring a rights holder to “believe” it is inapplicable could be an empty formality.

 

Full opinion here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf

By: Trevor Maxim, ’17

 

 

USC’s IP Clinic Wins! Petition for Exemption to Diagnose and Repair Agricultural Machinery Granted

USC’s IP Clinic successfully petitioned the Library of Congress to grant an exemption allowing farmers to fix their tractors without fear of legal repercussions. You read that correctly: prior to the rule issued today farmers were unable to repair their own agricultural machinery, including tractors, transplanters, manure spreaders and diesel hauler trucks. The Digital Millennium Copyright Act (DMCA) was enacted by Congress to prohibit the circumvention of technological measures employed by copyright owners to protect access to their work. Manufacturers of agricultural machinery rely on the DMCA to employ technological protective measures such as proprietary software, passwords and memory modification to to prevent farmers from obtaining access necessary to diagnose, repair and modify farm equipment.

The Clinic’s petition explained that the restricted access places the livelihood of farmers at risk, because they must often wait significant periods of time before their disabled vehicles can be repaired by a technician authorized by the manufacturers, and that those delays can lead to problems with time-sensitive crops or planting. The Register of Copyrights agreed, concluding “owners of … agricultural machinery are adversely impacted as a result of [the technological protective measures] that protect the copyrighted computer programs on the [electronic control units] that control the functioning of their vehicles.”

Based on the Register’s recommendation, adopted the new exemption will become operative twelve months from today. (Query whether there is statutory authority to delay the implementation… a conversation for another day!)
Dan and Farmers 1201For more info:

Supreme Court sides with innovators in Alice Corp v. CLS Bank

Exciting news! Today, in a unanimous opinion, the Supreme Court struck a blow against overly abstract patents in Alice Corp v. CLS Bank. This Spring, the Clinic co-authored an amicus brief with Public Knowledge on behalf of the Application Developers Alliance urging this result. In our brief, we suggested three ways in which the Court could clarify the law of subject matter eligibility–and we were delighted to learn that the bulk of today’s opinion was devoted to two of the clarifications we recommended. First, the Court reiterated that merely implementing an abstract idea on a computer does not make it patent-eligible. Second, the Court made clear that patent claims are not more patent-eligible than method claims. 

Kudos to USC Clinic alumni Michelle Lee and Mikhail Brandon as well as our co-authors Charles Duan and Anna Sallstrom of PK.

The opinion can be found here.

Clinic submits comment on behalf of IDA and Film Independent to The U.S. Copyright Office on Orphan Works and Mass Digitization

Yesterday, the Clinic continued its long-time advocacy on behalf of documentary and independent filmmakers seeking orphan works reform by submitting a public comment to the United States Copyright Office on behalf of the International Documentary Association and Film Independent, together with co-counsel Michael C. Donaldson. Earlier this year, the Copyright Office held roundtable discussions and sought public comments on Orphan Works and how they relate to large-scale preservation efforts. This March, Clinic interns Patrick Boyle, Patrick McCormick, and Professor Jack Lerner participated in the roundtable hearings; today’s comment is a follow up to those discussions.

Orphan works are copyrighted works for which the rightsholder cannot be identified or located. Many artists use existing copyrighted works in their creation of new works. Sometimes the artist may rely on fair use, but often he or she needs to obtain a license. When a work is orphaned, however, obtaining a license is impossible: how do you get a license when you cannot find the owner, or even determine who the owner is? This means that if a filmmaker wants to use an orphan work, he or she must do so under threat that someone claiming to be the rightsholder will emerge and sue for infringement.

Legislative reform is urgently needed, and IDA and FIND continue to support the balanced approach to reform that the Copyright Office recommended in 2006: permit the use of orphan works after the user has done a diligent search, while compensating rightsholders who resurface and limiting harsh remedies such as statutory damages and injunctions for those who have done a search in good faith. We are pleased that the Copyright Office continues to pursue orphan works reform, and we look forward to the next steps in this process.

Transcripts from the roundtable discussions can be found here and here.

Information on the Copyright’s Office’s orphan works policy making activities can be found here.

International-Documentary-Association_et_al_2014_OW_comment-2

USC News Spotlights Clinic Work in Supreme Court on Patent Policy

Yesterday, USC News spotlighted the work of the IP & Tech Clinic’s own Mikhail Brandon ’14 and Michelle Lee ’15, who filed two briefs in the Supreme Court this year as well as a comment with the Federal Trade Commission.  Read the story here.

You can read our own blog posts about the Clinic’s work this year on patent issues here, here, and here.

Michael Donaldson, Long-Time Friend of Clinic, Testifies to the Committee of the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet regarding Orphan Works

As part of the clinic’s continuing work on the orphan works problem, we are excited to announce that Michael Donaldson of Donaldson + Callif, LLP, long-time friend of the clinic, former President of theInternational Documentary Association (IDA), and pro bono outside counsel for Film Independent(FIND), recently testified to the Committee of the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet regarding the issue.

​Clinic members Patrick Boyle and Patrick McCormick helped Mr. Donaldson prepare his testimony, bringing to bear their experience testifying at the Orphan Works Roundtable Discussions held earlier this month at the U.S. Copyright Office.  This proved to be very valuable as the committee members asked several questions that raised issues discussed at the Roundtables.

Donaldson’s testimony included poignant stories from his clients who have been plagued by the orphan works problem.  He used these stories to explain how the orphan works situation negatively affects filmmaker clients and why a solution is desperately needed.  He also explained the proposed solution that IDA and FIND support, which would protect rightsholders while permitting uses of orphan works for creators and users who have conducted a good faith diligent search for the owner.

We congratulate Donaldson on an excellent job and we are confident that his testimony will be part of the process for finding a workable solution to the orphan works problem.

 

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