Fulk was allegedly by MS MR, a group signed to Columbia/Sony Records and therefore under the same label as Beyoncé, to direct one of their new videos. According to the filmmaker, Palinoia was then sent to multiple individuals working for the label, including Bryan Younce, senior vice-president for video production at Columbia Records. Younce, who had previously made videos for Beyoncé, asked for Fulk’s email five months before work on the Lemonade trailer began. He later asked the plaintiff for story boards and a development plan for the record label. The filmmaker claims that the access to his work explains “.”

How strong is Fulk’s case?

Like many copyright infringement cases, the outcome of this lawsuit will mainly depend on where the line between influence and copying is drawn. According to , the following must be proven in order to establish infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Proof of copying consists in two elements: (1) evidence of access to the plaintiff’s work and (2) probative similarities between the works.��More importantly, the law only protects and not ideas themselves.

While some might be more about Fulk’s chances of winning this lawsuit, the filmmaker seems to have, at first sight, a strong case. In his complaint, the plaintiff mentions nine different instances where substantial similarities between the two works can be seen. These elements make up . The mentioned resemblances, with the proof of access to Fulk’s work, allow the burden of proof to be shifted to the defendant who will then have “.”

However, when taking a closer look at both parties’ work, one could easily argue that some of the similarities Fulk mentions in his complaint lie within the scope of non-copyrightable elements.��This lawsuit could therefore end up like one of the most recent and similar cases to Fulk’s: .

After being by the agency 72andSunny for a potential Starbucks campaign and eventually declining a deal, Maya Hayuk, a muralist known for her use of colorful geometric patterns, sued the chain, claiming that their new packaging shared too many similarities with her own work. A month later, her complaint was tossed out by the District Court in Manhattan. The judge that “what the Plaintiff [had] described as the 'core' of her work in the��aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred.”��Ultimately, Hayuk’s work and creativity both rely on the use of “raw material” such as colors and geometric forms, which are part of the public domain. He later added that “the total concept and feel of the protectable expression of those ideas in the Hayuk Works and the expression of those ideas in the Frappuccino Works are not substantially similar.”

Unfortunately for Fulk, some of his claims do rely on the similarities between elements that might be deemed original. For instance, one of the nine scenes he mentioned include a shot of a person with their head down, next to graffiti. As mentioned previously, ideas cannot be protected under copyright law and showcasing a distressed character lying against a wall with their head down is most likely not original enough.

Fulk also mentions the similarity between the black-and-white title screens in both works. However, these screens have been used in multiple movies before (for instance, and , just to name a few). Moreover, as colors and fonts are considered "", Fulk’s title screens cannot be protected under copyright law.

As for more abstract similarities, the plaintiff's complaint mentions��that both videos have a “heavy, dark and angst-laden” mood and that both works’ paces are “a rapid succession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” But just like for black-and-white title screens, “Palinoia” does not create a new genre. As have previously pointed out, even some perfume commercials are filmed and put together in the same manner. Proving that the substantially similar elements between Fulk’s “Palinoia” and Beyoncé’s “Lemonade” trailer are protected under copyright law might therefore be harder than it seems.

A potential court decision could be very enlightening in regards to the current state of copyright law. Realistically, the chances of this lawsuit ever making it to court are fairly low - most cases like this are settled out of court -��as they are with involving visual arts.

Aicha Tohry is an IPilogue��Editor and an��Université de Montréal LLB holder.

The post When Life Gives You Lemons, Make (Your Own) Lemonade: Beyoncé Sued for Her Latest Album Trailer appeared first on IPOsgoode.

The provision at the heart of this case, Article��24 paragraph 1 of the Swedish , allows the depiction in pictorial form of a work of art if permanently placed outdoors on or by a public place. When determining what restrictions of the authors’ exclusive rights lay within the concept “depict,” the made a very clear distinction between reproductions of little economic value, such as the creation of postcards, and other uses. The court decided that in its restrictive interpretation of Article��24, it had to strike a balance between the application of the law and the purpose of the database at hand. Although Wikimedia’s platform had the public’s interest in mind, the court determined that “a database of the present kind [provides] for great use of copyright protected works without any compensation being paid to the authors. [It is thus] a considerably greater restriction of their exclusive rights than the provision aims at.” It then added that whether or not Offentlig Konst has a commercial purpose is irrelevant in this case.

This decision raises many concerns that go beyond the realm of databases. First and foremost, what are the potential implications regarding public space and its interaction with technology on a daily basis? As governments around the world have been trying to modernize their respective copyright legislations, it is interesting that the Swedish�� in this case seemed to believe that the main problem with Wikimedia’s platform was the fact that the available pictures were used in a digital environment as opposed to analog depictions, which allow for a much more limited scope of reproduction and distribution. By making the pictures available for unlimited use, the open database took away a significant opportunity for artists to monetize their creations. But isn’t that the case with every picture posted online? believes that following the logic used in this decision would make sharing on social media a selfie in front of a Swedish monument or public artwork an act in violation of Swedish copyright laws. Moreover, the compensation of authors being an important part of this ruling, the fact that social media platforms such as Instagram ask for a on published content could make it harder to argue that, like postcards, such use would be of little economic value.

Aside from the potential implications for social media users, this decision raises a question that is often asked when talking about works in public spaces: should public art automatically be in the public domain? Wikimedia surely seems to think so, as it sees this entire case as a As a matter of fact, when asked about their refusal to negotiate a license fee with BUS, Wikimedia reiterated their belief that public art should be accessible to the public without restrictions. have endorsed this declaration by adding that taxpayers should be able to access art that has been financed with their money and that they should not have to pay for it over and over again. Proponents of this vision should be mindful, however, of the fact that copyright protection gives artists an to create. By not granting protection to those works, an obvious hierarchy between public and non-public art would most likely be created. There already seems to be an implicit divide between the two,��as the rising number of copyright law cases involving street art shows (see IPilogue coverage ).��Public art’s intellectual property rights being more and more infringed upon in the digital age might only accentuate this hierarchy.

Whether or not a similar decision could be rendered in Canada is hard to determine. So far, Canadian courts have not had to rule on this issue. Section 32.2 (1) of the Canadian , which allows the reproduction in a painting, drawing, engraving, photograph or cinematographic work of architectural works and public art, does bear some similarities with Article��24 of the Swedish .When the time to interpret similar provisions comes, courts will have to keep in mind that, as Magdalen Malm, director of Public Art Agency Sweden puts it, Surely, as public space, authors' rights and the act of freely sharing digital content become more and more intertwined, this case will not be the last time we see copyright laws conflict with the digital world.

Aicha Tohry is an IPilogue��Editor and an��Université de Montréal LLB holder.

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The public domain as the “storehouse of the raw materials of creative expression, freely available to all.” Integral to��the copyright system, access to the public domain facilitates��the spread of knowledge as well as innovation, artistic freedom and more. Furthermore, access to the public domain should ideally allow for dialogue and the debate��of various ideas. Some believe in “a public domain that reflects and protects the dialogic processes of culture on the face of increasingly restrictive intellectual property structures.” ��compare it to freedom of speech, claiming that “both the public domain and the principle of free speech construct, or aim at constructing, a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle.” No matter what concept you ascribe to, however,��dissuading��editors from publishing newly edited versions of Mein Kampf runs counter to the��spirit of a robust��public domain. What is important here is not the unrestricted availability of the manifesto as a symbol of humanism-contradicting��ideologies, but rather the unrestricted access��to��a pedagogical tool that can spark��dialogue through commentaries and annotations, and the contradictions or lies these notes can highlight.

Mein Kampf’s history after Hitler’s death also justifies a reedited version of the manifesto. Having inherited the rights over the book from the Nazi leader’s estate, the State of Bavaria was able to the copying and printing of new editions in all of Germany. Considering the historical and legal context, that decision was understandable, but ultimately incompatible with the copyright system.�� The public domain plays a crucial role in the of intellectual property, a system defined by monopolies and exclusive rights. By preventing further publications, the State of Bavaria used this very system as a tool for censorship, when the systems'��primary goal is actually to . If the public domain is indeed to act as a balancing sphere, then its respect calls for the existence of an annotated, explanatory version of Mein Kampf as opposed to yet another form of censorship.

The reediting of Mein Kampf is even more relevant in today’s context than it ever was. Once it falls into the public domain it will be available to anyone and everyone via the Internet. The digitalization of our society is an to the access of the public domain, but it also makes ideas even easier to propagate. The State of Bavaria’s ��to limit the distribution of Mein Kampf in other countries have been mostly unsuccessful, as Hitler’s book has become quite popular in certain regions of the world, including��the . Mélenchon was right to say that , and concerns coming from the propagation of Nazi ideology��in an already fragile Europe are legitimate.��The counteracting existence of a pedagogical,��annotated version of the manifesto, however, will be more than necessary to fight the possible misuse of Mein Kampf and explain the pitfalls and horrible consequences that can arrive from such a point of view.

Allowing the publication of Mein Kampf may seem counter-intuitive, as no one can deny the dangers of the manifesto’s ideology. We cannot deny, however, that the book is part of our global history and��heritage. The public domain plays an essential role in��the ��by refusing to��edit��out��historical lows so that we can avoid repeating the��mistakes of��the past. Its purpose is to let us grow as a society, through access to��knowledge.��By not making a distinction between immoral and moral works, the public domain has decided to stand by the belief that “.”

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

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Under , protection is granted to “” This definition should include��both commissioned and non-commissioned art. However, an important question arises concerning the latter: should an illegally-scrawled piece of art (graffiti for example) receive any protection at all? The doctrine of unclean hands states that “” Of course, such a principle could easily be interpreted restrictively��to��deny non-commissioned street art copyright protection. But nuance, as always,��is a recommended approach.

The doctrine of unclean hands only applies when the wrongdoing is relevant to the copyrightability of the work. Although lawsuits involving street art often end in settlements, the few existing analogous cases demonstrate��that, as long as ",” protection should be granted.

Moreover,��copyright law marks��a clear distinction between the intangible work it protects��and the��physical embodiment of that work. Thus, the ownership of the surface on which street art is composed is irrelevant to its creator’s rights, as the United States' ��only grant protection over the intangible work.

When it comes to establishing infringement, must be proven: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The first criterion involves,��, the very copyrightability of the work in question. As explained previously, the first criteria is met provided the original work is fixed in a tangible medium and original.

However, because part of an��infringement analysis��relies on demonstrating "probative similarities between the works," establishing the copying of constituent elements of the work can be a little more��complicated. tend to look for mistakes that are common to both the plaintiff's and the defendant's works, as those can rarely be the result of coincidence. However, those do not always exist and��art being inherently subjective, the fundamental issues in copyright cases involving visual art can��stretch��beyond mere��legal interpretations into��artistic ones. In a domain where many their work has been influenced by someone else and where every “new” creation seems to somehow stem from another, where can we draw the line and establish that an artist’s work is completely his? Certain artists do have trademark aesthetics, but are those enough to say that a very similar looking piece of art is necessarily infringing?

The sudden rise��in street art infringement lawsuits theses past few years is unsurprising. This particular form��of artistic expression has become a favoured��object of , , and even as . Highly competitive industries like��the fashion industry are exploiting��street art’s undeniable marketability. As expressed��in the against American Eagle, “'street credibility’ is highly sought after by retail brands for the cultural cachet and access to the profitable youth demographic it offers.”��Unfortunately, street artists must fend with more than the copyright issues underlying such realizations, as “.”��Pursuing��these companies to protect their intellectual property is becoming a necessity. “Street credibility” goes beyond aesthetics, with stakes in��an artist’s reputation and integrity. As a matter of fact, the��complaints against and ��each make reference to the��artists being considered “sell outs” as one of the main damages caused by their association with such corporations.

Of course, these issues have always existed. But��street artists have been��reluctant to go after infringers. Putting aside monetary issues, for many of them “.” Their desire to paint on the street often stems from an��indifference towards the formal art world and everything it entails, but mainstream brands’ sudden interest in street art has left artists with no other option but to fight for their rights. Deterrence from doing so��— in the form of vandalism charges — remains for creators of non-commissioned work��as fighting for ownership rights over their art also means revealing their identity. But, for the most part, times have changed and counter culture now seems to stop where infringement begins.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

The post When Choosing the Street (Art) Life Leads to the Court Life Choosing You appeared first on IPOsgoode.

In May 2015, Re:Sound, one of �䲹�Բ��岹’s various music licensing companies, published , a report about “the value of music to customers and businesses,” and the results are prominent: music does influence customers’ decisions. According to that report, 75% of��Canadians notice the music being played in bars and restaurants and 88% of Canadians enjoy hearing music in such establishments. Moreover, 80% of Canadians “feel that music in a bar [or] restaurant […] enhances their experience.” This appreciation often translates into very cogent actions such as making patrons stay longer, returning to the business in the future, and��recommending the place to others. Music, whether live or recorded, can be used as a powerful “marketing tool that adds value to businesses” and should therefore be carefully chosen.

This desire to hear music in eating and drinking establishments should emphasize, not trivialize, the source of that music. In fact, according to that report, “” Upon learning��that a business was not complying to music licensing laws,��almost 50% of Canadians would take some kind of action, including not recommending the establishment to others. And such reactions are not only true of Canadians. The report adds that��40% of��Swedish consumers would also have a negative opinion of a business if they discovered��it was using music illegally. Therefore, in order to take advantage of music as a means��to attract new clients, business owners must not only take in consideration what they play, but also its��legality. In Canada, that��means complying to the various rules surrounding performance rights.

�䲹�Բ��岹’s gives copyright owners the exclusive right to perform music works in public or to communicate them to the public by telecommunication. Such rights do not only include live performances but also the use of recorded music in a public setting. SOCAN (the Society of Composers, Authors and Music Publishers of Canada) and Re:Sound both provide business owners with multiple tariff licences applicable to various uses of music. Paying one copyright collective however licensees from paying the other.

�����䴡��'���� is a licence to play (publicly perform) live music in an eating/drinking establishment. The annual fee for this specific licence is 3% of the yearly compensation for entertainment, for a minimum of $83.65 per year. Compensation for entertainment includes the artist’s remuneration as well as any tips given by customers or in-kind contributions from the business owner (free meals, transportation, etc.).

, on the other hand, allows those establishments to play recorded music accompanying live entertainment. Licensees are required to pay 2% of the annual compensation for entertainment, for a minimum of $62.74 per year. Re:Sound's equivalent to this licence, , demands 0.9% of the aforementioned compensation, for a minimum of $37.64 per year.

is probably the SOCAN licence that applies to the highest number of businesses, as it covers the use of music for background purposes. The annual fee depends on the size of the establishment: $1.23 per square metre or 11.46 cents per square foot;��and a��minimum yearly fee of��$94.51. Seasonal establishments are only required to pay half of the aforementioned rate, provided they are operating under��six months per year, though��the minimum annual fee applies nonetheless. Keep in mind that paying for a streaming service or online radio will not exempt business owners from paying this licence (digital music services such as Spotify have reiterated this in their and do not allow, in most cases,��commercial use of their platform). However, no royalties will be collected for the use of a radio receiving set.

On the other hand, , the comparable Re:Sound tariff in this case, requires fees that can be calculated in : "1) the total annual tickets sold or admissions multiplied by $0.000831; or if that is not available, 2) the total capacity of the establishment, multiplied by the number of days of operation in a year, multiplied by $0.001558; or, if that too is not available, then 3) the area of the establishment in square metres or square feet, multiplied by the number of days of operation in a year, multiplied by the number of days in operation in a year, multiplied by $0.002597 (per m2) or $0.000239 (per ft2)."

Finally, �����䴡��'���� allows licensees to play recorded music for dancing. The annual fee is based on the establishment’s capacity as well as the days and months of operation. After a series of calculations based on those variables, the final number should be equal to the percentage required by SOCAN for this particular licence. , Re:Sound's comparable licence, also uses these variables to determine the required annual fee. The calculations will vary depending on whether the establishment can accommodate more than 100 patrons or not.

The Pan American Games will probably not have much of an impact on Toronto's already music scene, nor the way musicians are compensated for their work. But as they give restaurant and bar owners the chance to target a new consumer base, they also allow public performance rights to be discussed as an investment as opposed to a mandatory compensation. And as with most investments, rules need to be followed and content creators and performers��need to be remunerated.

��Aicha Tohry is an IPilogue Editor and a JD candidate at Université de Montréal.

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At first sight, Prince’s new exhibit might seem like a blatant infringement of copyright, but as with all of his work, Prince plays with details. When trying to determine whether a certain work falls under fair use, US courts look at : 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work. However, the underlying concept at the core of the fair use doctrine is the concept��of transformative work: “in order to qualify as fair use, a new work must generally alter the original with ‘.’” Thus, the more transformative the work is, the ��the consideration��given��to��those other factors will be.

Combining��all these elements makes it difficult to��predict the��outcome of a potential lawsuit against Prince. The only addition��to the original��pictures, aside from Instagram's distinctive��visual characteristics, is a comment from what seems to be Prince’s very own account on the social media platform. Whether or not such an addition could be considered enough to make New Portraits transformative is uncertain. Courts have that “cosmetic changes [to a certain work do not] necessarily constitute fair use. A secondary work may modify the original without being transformative.” As explained in ��(Prince's most recent infringement case), such a transformation must be noticed by a “reasonable observer,” the artist’s original intent therefore being irrelevant. The application of the reasonable observer test has not been clarified��further��by the Second Circuit.

As with the majority of Richard Prince’s work, New Portraits has sparked very polarized reactions. Some have acclaimed the artist, qualifying his art as “,” since Prince’s work “.” Yet, regardless of the praise the appropriation artist has received��from connoisseurs such as , art critic for the New 91��ɫer, see New Portraits as intellectual laziness. go as far as saying that his work has no inherent value, and the only explanation for��people’s willingness to shell out so much money for his work is that it hangs in a gallery.

So far, none of the concerned original posters have expressed a desire to sue Prince. The most proactive action against the artist has been taken by Missy Suicide, founder of the model website Suicide Girls. Following Prince’s use of five screenshots��from Suicide Girls’ Instagram account, she��decided to take an alternative route and of those screenshots for 90 dollars (a choice Richard Prince whatsoever).

The��lack of legal action to date does not necessarily mean there is no case to be made. think Instagram might have one, contractually speaking. According to their , users of the social media platform cannot “reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.” Considering the nature of Prince’s exhibit, the appropriation artist seems to have��contravened those terms. However, while suing the artist who seems appealing, some believe it might just play into his favour.�� That is, such a decision could make Prince “,” therefore adding a new message these photographs.

Regardless of Prince’s intentions, his work undeniably offers��occasion to question our current copyright system. As fair use is an institution whose purpose is to “,” it is a legitimate concern to ensure��its��current boundaries allow copyright law to successfully meet that goal. New Portraits might not please everyone, but��changes are��often��sparked by controversy and that is a game at which Richard Prince clearly excels.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal��

The post New Portraits: May Richard Prince Fair(ly) Use Your Picture? appeared first on IPOsgoode.

In 2012, Slimane renamed the Yves Saint Laurent Paris fashion to Saint Laurent Paris. This change might have seemed like an organic part of Slimane’s overhaul of the brand in an attempt to give it a more modern feel, but some took it as a simple act of disrespect towards the man who made the label what it is today. About a year after LGI filed to register the new name, What About Yves created a series of parody t-shirts. “Ain’t No Laurent Without Yves”, the witty catch phrase displayed on Heller’s merchandise, emerged from the uproar caused by the removal of the late designer's first name from the fashion house’s label. Eventually, the house’s creative director decided to from Colette Paris, a high-end French boutique that also happened to stock What About Yves t-shirts. LGI tried reaching out to Heller multiple times at the beginning of 2013 to inform her of the their claims and objections regarding her use of "Ain't Laurent Without Yves." Yet, those correspondences went and Heller's merchandise kept being sold.

In their , LGI states that Heller’s “infringing mark as used on Defendant’s infringing products creates an identical or virtually identical commercial impression to LGI’s trademark due to the similarity in sound and appearance and arrangement.” The plaintiff also alleges that Heller’s use of lesser quality material for her merchandise and an identical typeset for her mark are part of an attempt “to pass [her] infringing products off as [LGI’s] products in a manner calculated to deceive Plaintiff’s customers and members of the general public in that Defendant has applied a nearly identical mark to LGI’s marks to goods of the kind Plaintiff regularly markets and sells.”

The situation in which LGI and Heller find themselves is not the first of its kind. Amy Wang notes that has played an important role in the industry in recent years. A desire to create a new form of luxury that would be more available to customers has led to the rise of a phenomenon that has not spared any of the major players in the market. Brian Lichtenberg, a notable designer in that niche, has parodied many brands including Balmain, Hermès, and North Face. Creatively speaking, the revival of streetwear caused by ironic fashion may be a welcome trend, but does it constitute legitimate legal parody? As Wang's blog points out, the intuitive response to some streetwear designers' work may be to argue that it is protected by the First Amendment, but such a claim calls for nuance.

As the usual defense invoked against trademark infringement and dilution, the two causes of action provided by the Lanham Act, a “” must: (i) “convey two simultaneous – and contradictory – messages: that it is the original, but also that it is not the original and is instead a parody,” and (ii) “ some articulable element of satire, ridicule, joking or amusement.” Ultimately, a successful parody will diminish the possibility of confusion between the plaintiff and the defendant’s marks, the sole presence of a humorous or satirical message therefore not being sufficient to establish the existence of a legal parody, contrary to popular belief.

Historically, some courts have ruled in favour of parodies for First Amendment reasons, regardless of the likelihood of confusion. However, recent����suggests that courts favour trademark infringement rulings for made-for-profit merchandise, as commercial speech is not fully protected by the First Amendment.

At first glance, it appears LGI has strong case. In April of 2013, Heller filed to register “Ain’t Laurent Without Yves” as a trademark, but the United States Patent and Trademark Office (USPTO) the application. They claimed that Heller’s mark was likely to cause confusion with some of LGI’s existing trademarks. As the legality of a parody depends on whether confusion is a legitimate concern and whether the original brand’s value becomes diluted, Heller seems to have failed the first test. Yet, what does or does not constitute parody is determined on a contextual basis by courts. The nature of Heller's merchandise, combined with the known story behind it, might just meet the definition of a successful parody.

This lawsuit will not be the last of its kind. While have decided to embrace ironic fashion, as a way of "making profit from riding the coattails, so to speak, of well known, in demand, and often pricey brands." As a niche that claims to be a response to capitalism and the desire to reform the fashion industry, the turn this trend has taken might just be where the real irony lies.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal

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