The judge ruled that Blurred Lines did appropriate key elements of the original song, and as such constituted an infringement. In addition to the $5 million lawsuit, the court ordered the pair to pay 50% of future royalties from the song to the Gaye family. While the 2015 hit generated a total of $16.6 million in revenue, a sizeable chunk of that has been used for legal proceedings. The lingering question seems to be: what stopped them from going through the appropriate channels to approve their use of the sample?

Digital music sampling has become a cornerstone of modern music production. It reflects a move towards a collage-based style of artistic expression. Despite this shift, the legal framework relevant to sampling is currently suffering from power imbalances that lead to inefficiencies and unfairness. Specifically, exorbitantly high transaction costs for copyright owners and users and the potential threat of copyright owners losing control of their intellectual property has created a hostile climate.

Under current processes, to legally sample a song requires permission from the owner of the composition (the song itself) and the recording, as these represent two individually copyright protected works. Typically, these situations will not give rise to court proceedings, as the threat of legal costs leave many artists settling outside of court. In fact, Pamela Chelin, a court reporter who covered the trial, noted that was that it actually went to trial. What this means is that for Williams and Thicke the pair to legally clear the 1977 classic, they would need to obtain permission, and likely be subjected to a negotiation process that would be heavily tipped against them.

Section 3(1) of the (the Act) lists the rights available to the copyright owner in the event that a potential breach of their rights occurs when a sample is used. The Act defines a copyright as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”. The wording “sole right” affords the owner an exclusive right over the material.

A copyright infringement occurs when any person does anything the Act grants the owner the right to do without consent from said owner. In assessing whether an infringement has occurred, : what constitutes copying, what is a substantial part, and how can copying be proven?

The result of the pair ceasing to release the 2015 hit would surely have been an unwanted consequence for the general public. , the solution to this imbalance lies within the creation of a streamlined compulsory licensing system, similar to the current regime for music covers. Copyright owners and artists benefit from this system, as time and money would no longer be wasted on legal costs stemming from statutorily imposed negotiations. The license would remove this negotiation requirement and allow for royalty payment structures to be calculated at the outset based on market trends and other pre-established variables.

Despite the prevalence of this form of copyright infringement, and the widespread use of sampling over the past few decades, conversations around reform have yet to occur in a meaningful fashion. Perhaps this case will signal a need for legislative change to provide more guidance for sampling. In the words of The University of Virginia professor, Siva Vaidhvanathan, “”.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School.

The post Blurred Lines: Uncertainty in the Legal Framework of Music Sampling appeared first on IPOsgoode.

Since its conception Netflix has restricted users’ access to regional shows from other locations. However, due to pressure from content providers, the streaming service has become more aggressive with reinforcing the ban. While much of the popular content on Netflix today is original programming, it still has a lot of content that is only available in certain countries.

To stream this content, Netflix has to pay to license the programming, much of which is only available in certain countries. Subscription payments do not account for users in other regions attempting to view the content using a VPN to disguise their locations. This creates a massive issue for content creators who seek to protect their work, as well as the profits derived from the programming.

To combat this issue, Netflix is working with studios on global licensing for the programming it offers. Currently, securing licensing agreements with networks and other content owners is the . The company spent nearly $13 billion in 2018 on content licensing, which increased to $15.3 billion the following year.

A global strategy could extend Netflix beyond the regionally determined parameters. When addressing the matter of how people use VPN services to get around geographic content restrictions, Netflix CEO Reed Hastings the solution is for the company to offer the same content to everyone, irrespective of where they are in the world.

This move to provide international content would undoubtedly be good for business, as it helps to reduce the licensing agreement costs, while also ensuring users have a more interesting selection of programming, potentially increasing the number of users. While the prospect of a global content library is promising, getting around regional licensing restrictions presents a tricky hurdle.

Additionally, privacy concerns also spring to the forefront with any restrictions on VPN use. The ban fails to account for users who rely on VPN services to protect their data while using Wi-Fi. These users pay for local access and use Netflix without violating the terms of service, and as such, should not be unduly restricted, nor forced to abandon their privacy safeguards.

These issues need to be resolved quickly as indicate that Netflix’s revenues are not growing fast enough to cover its rising licensing expenses, which are projected to be on pace for . Ultimately, the more reliant the company is on licensed content, the more money they will have to spend to remain competitive in the coming years with companies like Hulu and Disney Plus on the rise.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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Complex Magazine and Sports Illustrated reported that a New 91��ɫ copyright attorney filed a lawsuit against James on behalf of Steve Mitchell, who took a picture of James dunking during the LA Lakers vs. Miami Heat game on December 13^th, 2019. The following day, James posted a cropped version of the picture on his social media accounts, resulting in the aforementioned lawsuit.

Mitchell’s attorneys are arguing that the fact that James is the focus in the photo does not preclude him from seeking permission to publish the photo. As the owner, Mitchell argues that his copyright has been violated since no contractual agreement was reached between himself, James, and/or the Lakers. Mitchell is seeking damages of up to $150,000 per infringement.

James has been known to repost images from various fans on his account in the past, and as such, fans may be of the view that commencing legal action on these grounds is excessive on Mitchell’s part, as many photographers in the past have settled for the bragging rights. As a seasoned photojournalist whose work has appeared in major publications including ESPN and Sports Illustrated, Steve Mitchell is not likely interested in bragging rights. Mitchell is in the business of licensing his photos to online and print media for a fee, which provides context into the seriousness of the infringement from his perspective.

The essential rules of copyright law would deem Mitchell to possess copyrights in his creative works, absent a contractual relationship that says otherwise. The fact that Mitchell is a credentialed photojournalist that works closely with the NBA would likely only strengthen his claim. 

The complaint further demonstrates that Mitchell registered the photo with the U.S. Copyright office. This is not a necessary step to secure a copyright in a work, as a copyright exists from the moment the work is created and fixed in a tangible form. Despite this, registration allows for additional legal protections, including, the ability to sue for infringement.

The Doctrine of Fair Use

The fair use doctrine, initially a common law creation, was later codified in of the (the Act). It is considered an “”, meaning that courts do not employ a bright line test, but rather, weigh all the relevant facts on a case-by-case basis. The Act provides a non-exhaustive list of factors a court should consider. These include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyright protected work; (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole; and (4) the effect of the use upon the potential market for or value of the copyright protected work.

It likely will not be difficult for the judges to conclude that an infringement occurred, however, James’ attorneys will likely seek a potential defense under the fair use doctrine.

(1) The Purpose and Character of the Use

The purpose of the post arguably was to celebrate the dunk and pay homage to the time James spent playing for Miami, prior to playing for his current team. The fact that the post is freely available, and James is not profiting from the post might also be favorable for James. His attorneys will likely argue that there was no intent to profit from this post. Despite this reality, the fact remains that James’ pages are highly commercial, and these posts contribute to the commercial success of his brand. 

(2) The Nature of the Copyright Protected Work

In terms of the nature of the work, James’ attorneys might argue that there is nothing imaginative or unique about the photo, as it is James dunking a basketball – something he has been known to do a lot of over the years. On the other side, Mitchell’s lawyers could construct a range of arguments to try and rebut this claim. Bolstering an argument around Mitchell’s background as an established photographer with a history of licensed and protected work would be a potentially viable avenue.

(4) The Effect of the Use upon the Potential Market

Market impact will likely be one of the major factors discussed if a fair use argument is raised. From Mitchell’s perspective, his attorneys could argue that James’ post diminishes the value of the original photo. The fact that James’ photo can be easily reproduced is detrimental to the process Mitchell underwent initially, to register and protect his photograph. From a market perspective, time is of the essence, as increased popularity for James’ photo has the potential of further diminishing the value of Mitchell’s photograph. However, in an environment where a signature can , perhaps commencing legal action against one of the most popular athletes on the planet will have the opposite effect.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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Charles claimed his project, Two Stupid Guys in a Stupid Car Driving to a Stupid Town, was initially pitched to Seinfeld in 2002, as the pair had worked together since 1994. In fact, Charles directed the pilot for Comedians in Cars, however the pair’s relationship broke down due to a difference of opinion regarding Charles’ deserved compensation and credit.

Along with the claim that the idea for the show was his, Charles contended that he registered copyright protection for a treatment and script of a pilot episode. He further stated that he conducted meetings and had email conversations with Seinfeld’s representatives, prior to their difference of opinion regarding compensation after the pilot aired.

With the Netflix deal amassing , it’s fair to say that both parties had a considerable stake in the proceedings. Despite this, a Manhattan District judge, Alison Nathan, as Charles had taken too long to sue, bringing him outside of the statute of limitations.

Shifting to a Canadian context, the primary legislation that governs copyright in Canada is the (the “Act”). Sections 3 and 27 of the Act states that an infringement occurs when any person does anything that only the copyright owner has the right to do. In relation to a work, this means the sole right to: (a) produce or reproduce the work or any substantial part thereof in any material form whatsoever; and (b) perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof.

While a copyright infringement action may be filed by the owner of the copyright or its successor in title, the Act contains a three-year limitation period whereby the plaintiff knew or could have reasonably been expected to know of the act of infringement. US copyright law contains the same limitation period. As such, rather than focusing on the copyright claim, counsel for Seinfeld was able to direct the court towards this issue, as the plaintiff took at least double the limitation period (approximately seven years) to file an infringement action.

Counsel for the defense submitted that the plaintiff only sought legal action years later after finding out about the aforementioned deal with Netflix. 

An important factor in hinged on Seinfeld’s repudiation of Charles’ claim of copyright ownership. The facts of the case indicated Seinfeld rejected Charles’ request for backend compensation twice and made it clear that his only involvement was to be on a “work-for-hire” basis. The work-for-hire distinction is an important one in the context of copyright ownership, as the courts cited ., which held that a defendant who “assert[ed] ownership as a work for hire would effectively repudiate the Plaintiffs’ claim” of copyright ownership.

In agreement, the court held, “Even if all inferences are drawn in favor of Charles, a reasonably diligent plaintiff would have understood that Seinfeld was repudiating any claim of ownership that Charles may have. That Seinfeld did not expressly claim ownership for himself during these conversations does not matter. It is sufficient that Charles's claim was rejected.”

This rejection marked the initiation of the limitation period, as it was the fatal flaw in the infringement case. However, as the matter was decided on a limitation period argument, one is left to wonder how large a role, if any, Charles actually played in authoring the series.

The specificity of the lawsuit that Charles may have a viable claim, and, despite the potential for skepticism due to the final verdict resting on a technicality, the statute of limitations cannot be understood in this light. Rather, the limitation period is an important procedural safeguard put in place to allow for a balancing of protections around artistic expression, while ensuring this expression is not unduly restricted by overly burdensome confines.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

The post The Lawsuit About Nothing: Seinfeld Beats Copyright Lawsuit over ‘Comedians in Cars’ appeared first on IPOsgoode.

The film/entertainment industry is just one of many industries being largely impacted by the spread of the virus. At a macro level, the industry has seen closures of movie theatres, live shows, festivals, and concerts. For example, Vancouver, also known as “Hollywood North”, brought in $3.2 billion dollars to the economy last year through movie productions, however recent estimates show that or cancel production completely.

The Canadian Entertainment Unions , as performers don’t qualify for employment insurance. As precarious workers, performers are viewed as independent contractors, making them particularly vulnerable during times of economic instability.

In response to this, many industries have been forced to find remote solutions, as work-from-home options provide safe alternatives. In the performance industry this presents a challenge. However, the Vancouver Symphony Orchestra has provided an avenue for adaptation. On Sunday, March 15, , live-streaming the performance for 26,000 people around the world.

This model follows the approach taken in the sports world, as the preceding Tuesday saw multiple competitions played in empty stadiums as the Union of European Football Associations took unprecedented precautions to ensure the safety of players and fans.

As fans of these various entertainment industries are increasingly being told to stay indoors, streaming platforms will need to respond to the increased demand accordingly. Smaller streaming platforms, such as Acorn TV and Sundance Now, have responded to COVID-19 by , hoping to entice new subscribers to remain loyal to their platforms.

Larger platforms like Netflix and Disney Plus will likely have to find other creative solutions to remain competitive during times of “social distancing”. In response to COVID-19, US telecom firm Verizon found that , with online gaming increasing by 75% during peak hours.

Organizations like the World Health Organization and Global Citizen have highlighted the importance of keeping us connected to the arts during isolation through initiatives like . Through enlisting the services of artists such as Coldplay, John Legend, Keith Urban, fans have been treated virtual concerts to promote unity and raise funds for the COVID-19 Solidarity Response Fund.

As the world responds to this pandemic, the entertainment industry reminds us that social distancing does not preclude interconnectedness. Initiatives like #TogetherAtHome demonstrate the entertainment industry’s ability to promote creative alternatives in unprecedented times.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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Dr. McDonagh opened the presentation with an overview of his study. Specifically, he sought to address whether the recognition of authorship of dramatic works under copyright accurately reflects the processes involved in the creation of plays and other theatrical works. The tendency for copyright to award authorship to one person (the playwright), raises questions around whether it accurately reflects the reality of creativity in theatre.

Play writing, like many forms of artistic expression involve a collaborative process, insofar as the material produced in these settings is often the by-product of multiple individuals and perspectives. From an IP perspective, this notion of “relational authorship” raises speculation as to whether theatre fits with the idea of copyright being afforded to specific individuals. Ascribing full copyright protection to the playwright solely for their writing and none for the actors who perform is seemingly a prosaic way to operate. However, Dr. McDonagh notes that this approach is not unique to theatre.

For example, in the music realm, modern approaches towards the creation of a song’s instrumentals require a producer to meticulously layer various sounds together, harmoniously, to produce a finished product. 20 years ago, only nine of the top 100 albums contained sampling, while today, almost a third of the current top 100 use sampling as an artistic tool.[2] Despite the popularity of sampling music in genres like hip-hop, it remains a highly controversial practice within the field of copyright law, largely due to similar concerns around relational authorship.

Consider the case of Clyde Stubblefield, who was one of two drummers for legendary artist James Brown. Today, Clyde is regarded as one of the most sampled artists of all time. Clyde’s unique drumming style became a very popular bassline for hip-hop drum samples in the 90’s from some of Brown’s popular songs like “Funky Drummer” or “Cold Sweat”. For the artists sampling Clyde, they were not interested in Brown’s music as much as they were interested in Clyde’s drum beats, which he later indicated were entirely his own creations.[3] As he recalls, the recording of those songs began with him playing a drum beat and everyone joining in, which was a common practice for soul bands of that era.

Despite Clyde’s spark on the drums, and the assistance the other musicians provided in producing the final product, James Brown owned the copyrights and as such, would be the sole recipient of any benefits received from his music being sampled. This situation is analogous to the current dynamic in theatre, whereby playwrights exclusively receive copyright protection. In the theatre context, Dr. McDonagh highlighted that the work is often in a constant stage of re-definition, as it is not concrete until you get the first performance. These features can be seen in both the music and film world. In 2004, the case of �� demonstrated the court’s traditional approach towards copyright doctrine, as exclusive protection was given to the play’s original writer. Despite this, the more recent 2019 decision in has leaned towards a more contextual approach, as writing was not deemed to be the conclusive factor in determining protections.

The commercialization of hip-hop in the 90’s meant increased regulation around sampling and the proliferation of contracts between parties that did not previously exist. Dr. McDonagh points to the fact that within theatre, there remains a lack of contractual relationships between parties, whereas in film and music industries these contracts do exist. This raises questions as to the future of the theatre industry and whether increased regulation would aid or hinder creative expression in this context.��

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at IP Osgoode Innovation Clinic.

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[1] Quoted in Peter Yates, Twentieth Century Music: Its Evolution from the End of the Harmonic Era into the Present Era of Sound (New 91��ɫ: Pantheon Books, 1967) at 41.

[2] Kembrew McLeod & Peter Dicola, Creative License: The Law and Culture of Digital Sampling, (London: Duke University Press, 2011) at 5.

[3] Ibid at 91.

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Through references to films like Titanic and The Clock, Professor Bently spoke about the importance of fair dealing and ensuring that courts are not interpreting these provisions in an unduly restrictive manner.

Fair Dealing Exception

One of the exemptions parties may be afforded in the case of infringement is the fair use (the similar doctrine in the United States) or fair dealing (the doctrine in Canada) exception. On the surface, both doctrines animate similar principles, such as “character of the dealing”, however that the fair dealing doctrine is far more amenable and expansive compared to fair use. Fair dealing is a statutory exception to a copyright infringement, whereby the user is able to exercise rights in respect to copyrighted material belonging to an owner. Many scholars in favor of fair use find the fair dealing doctrine to be too amenable, making greater expansion, as Professor Bently advocates for, all the more difficult.

This defence provides an opportunity for users to defend a prima facie infringement, provided it is deemed to fall into the purview of sections 29.1 or 29.2 of the . Simply put, an individual can copy from a copyright protected work, without permission, provided the copy is for one of the enumerated purposes. Among these enumerated grounds are allowances for research, private study, education, parody, satire, criticism or review, and news reporting. Additionally, the dealing must be “fair”, as determined by the courts.

The Judicial and Legislative Expansion of Fair Dealing Under Canadian Law

Section 3(1) of the Copyright Act lists the rights of the copyright owner. Among other things, the Act, in the same section, defines a copyright as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”.

In response to this, Professor Bently probed at what truly constitutes a “substantial part”. Does a two-second sample constitute a substantial part, as was discussed in c-476/17, ? The court held, “sampling without authorisation can infringe a phonogram producer’s rights. However, the use of a sound sample taken from a phonogram in a modified form unrecognisable to the ear does not infringe those rights, even without such authorization.” Focusing on Canadian courts, the decision in defends an expansive approach to fair dealing. The court quotes professor who states, “user rights are not just loopholes. Both owner rights and user rights should therefore be given fair and balanced reading that befits remedial legislation.”

 The Quotation Right in the Berne Convention

Adopted in 1886, the is concerned with the protection of works and the rights of their authors. The Convention sets the minimum protections to be afforded to countries who are signatories - Canada is one of these countries.

Article 10(1) of the Berne Convention states, “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose…”. Professor Bently argues that despite the clarity and strength of the language used (“shall be permissible”), Article 10 has been largely overlooked. Expanding the application of fair dealing in Canada will require a more literal interpretation of this provision. 

Implications: Global, Mandatory Fair Use

In closing, Professor Bently states that Canada should extend its fair dealing exceptions further to permit quotation of all works for any other purpose. Despite the likelihood of dissent from the international community, as the expansion of fair dealing could mean undermining copyright holders’ rights, expansion remains a necessary step forward to prevent artistic expression from being unduly restricted by law.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at IP Osgoode Innovation Clinic.

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