Raenelle Manning is an IPilogue Writer and 2L J.D Candidate at Osgoode Hall Law School.

If you have ever incorporated music into your Instagram or Facebook videos, you may have committed copyright infringement. But don’t worry, you won’t need to get a lawyer! On July 20^th, 2022, Meta Platforms Inc. (“Meta”) was hit with a $142 million lawsuit. The suit was filed in California Northern District Court by Swedish music label and publishing company, . They claimed that Meta, on its social media platforms, has stolen hundreds of their content. In the , they argued that Meta violated the US for direct, induced, and contributory copyright infringement.

Who is Epidemic Sound?

Influencer culture and, by extension, content creation on social media, has become increasingly prevalent in recent years. In the past, content creators have had issues incorporating music into their posts due to . YouTube, especially, has been known to enforce copyright law by either muting or taking down infringing content. solves this problem by offering music licenses to creators who publish on platforms like Facebook, Instagram, Twitch, TikTok and YouTube. For a $15 USD per-month subscription, users receive a license to use material from a catalogue of 125,000 sounds and songs. Epidemic holds the copyright to the content in their catalogues and offers their licensees (subscribers) guaranteed protection from copyright infringement claims. However, they that only subscribers are authorized to use their content. This is where Meta is implicated.

The Infringement

This action is primarily about Instagram’s “Reel Remix” and “Original Audio” features, which Epidemic claimed encourages and enables users to commit copyright infringement. The allows users to incorporate their own videos into existing reels. It is similar to TikTok’s Duet feature which simultaneously plays user’s videos on a split screen. The ““ feature also allows users to extract the music from existing video posts and include it in their own content. However, users who upload with these features usually do not have license to use the music in the original video which they extracted the music from. Even if the original video creator acquired their music through their Epidemic subscription, unsubscribed third parties essentially use Epidemic’s content without authorization. Epidemic’s suit also argued that Meta, itself, engages in copyright infringement by storing, reproducing, and distributing their content on Instagram’s Music Library. When users select songs for their posts, Meta makes a copy and transfers it to the user in violation of Epidemic’s exclusive reproduction and distribution rights.  Epidemic predicts that there are currently over 80,000 infringing videos circulating daily on Instagram and Facebook.

Epidemic also mentioned that they Meta about this issue, but Meta has refused to provide them with compensation or the to identify and protect their works. The claimed statutory damages for this action are quite significant, but under , parties are entitled to $150,000 per infringement. Since Epidemic owns the copyright to the sound recording and musical composition of the 950 songs it suspects are on Meta platforms, the price will be high. It is interesting that Meta has not taken precautions against such expensive litigation. Meta has not yet responded to the lawsuit, so we will have to wait to see how this case unfolds.

The post Instagram and Facebook Users Are Engaging in Copyright Infringement?! appeared first on IPOsgoode.

Raenelle Manning is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On May 3, 2022, Bishop David P. Moten, a Texas pastor, filed a copyright infringement lawsuit against rapper Kanye West for incorporating a sample recording of his religious sermon into one of his songs.

Moten sought damages from West and co-defendants, G.O.O.D Music, Def Jam Recordings and Universal Music Group. The allegedly infringing sample is used on “Come to Life”, a song featured on his 2021 album “Donda”. At the beginning of the song, Moten’s voice is heard saying “My soul cries out, ‘Hallelujah’ and I thank God for saving me”. The rest of the sampled sermon is featured in the background of the pre-chorus and chorus. Moten argues that “over the span of several years, defendants have demonstrated an alarming pattern and practice of sound recording of others without consent or permission.”  

In 2019, West was also hit with a for unauthorized use of a sound recording on his Grammy-nominated song, “Ultralight Beam.” The beginning of the song features the audio from a viral Instagram video which portrays a four-year-old girl praying. The child’s guardians sued for and a share of the record’s profits. In the same year, actor, West for sampling a recording of his performance titled “The Spirit of Marcus Garvey” on West’s song “Freee (Ghost Town pt.2).” that West “exploited the actual voice, words and performance without authorization.” Both suits were settled.

Sound recordings are subject to copyright protection under the US (“Act”),  which also provides that the owner of a sound recording has exclusive rights to reproduce, prepare derivative works from and publicly distribute the work. To incorporate a sound recording into a new musical work, artists must from the copyright holder. A grant of permission may accompany a written agreement to compensate the copyright holder through either a flat fee or  . Using the sound recording without permission constitutes copyright infringement. The states that copyright owners are entitled to “damages and profits of the infringer that are attributable to the infringement.”

Fair Use

An artist who fails to acquire permission from the copyright owner can use the ‘fair use’ defence. Under , fair use allows persons to use parts of a copyright protected work without permission for limited purposes. The court considers the following : (1) the and character of the use, including whether such is for commercial or non-profit educational purposes; (2) the nature of the of the copyright protected work (the court may consider whether the copied material has been creatively transformed by adding ); (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole (the smaller the portion of the material used, the better for this defence) and; (4) the effect of the use upon the potential market for or value of the copyrighted work (the court may consider whether the audiences of the new and original work differ enough to not cause financial harm to the original copyright owner).

The fair use defence is in music sampling cases. However, Toronto-born rapper Drake successfully used the regarding the use of thirty-five second recording of a spoken-word piece on his song “Pound Cake.” West has previously attempted to employ the fair use defence in the  so he may similarly attempt to use the fair use defence for the current case. Moten seems to have anticipated the use of the defence.  He claimed that “Come to Life” — an arguably substantial usage — a factor that likely weighs negatively under the third factor of fair use consideration.

The of copyright legislation is to encourage creativity, but also to protect the rights of copyright holders. West and the record labels named in the lawsuit undoubtably have the resources to obtain compulsory sample clearance and compensate individual copyright holders. It is hence difficult to justify their continuous and deliberate failure to do either, especially when West’s creative projects are known to reap significant popularity and financial gain. For instance, prior to the album’s release, the “Donda” listening party’s ticket sales alone produced  To allow West to succeed on a fair use defence and evade his obligation to compensate would be seemingly unjust to Moten, whose sound recording arguably contributed to the album.  

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Looks Like the Cabin May Have Been Double-Booked for the Weekend

In the , Gallagher alleges that Whedon and co-writer and director Andrew Goddard took the idea for their successful horror movie  from Gallagher's 2006 novel entitled The (filed in the U.S. District Court, Central District of California – Western Division) names Whedon and Goddard as defendants along with Whedon's production company Mutant Enemy Productions, and Lions Gate Entertainment. Gallagher's claim (which can be read in full ) explains the ways in which his novel and the movie are similar, including shared plots, themes, and even characters.

For example, Gallagher states: "Like the Book, Cabin in the Woods tells the story of five friends (three guys and two girls) between the ages of 17 and 22 who take a trip to a remote cabin in the woods…In the end, it is revealed that the friends are being filmed and manipulated by persons behind the scenes, thus becoming inadvertent characters in a real-life horror show for the enjoyment of others." He noted that: "Even the names of the lead characters are similar. The name of the lead blonde in the Book is Julie and in the Film it is Jules. Similarly the name of the lead brunette in the Book is Dura and in the Film it is 'Dana'…The cabin in the book is referred to as the 'Brinkley Cabin' and in the film it is the 'Buckner Cabin.'" Gallagher includes a detailed list (beginning on page 11) comparing similar elements of the two works side-by-side. When paired with descriptions like those noted above, the list is admittedly quite convincing in favour of his claim.

Additionally, Gallagher provides evidence demonstrating Whedon and Goddard would have had access to the book prior to creating their film. The evidence references the popularity of his book and the location in which the novel was marketed and distributed: Los Angeles neighbourhoods in close proximity to the defendants' residences and business operations.

But Might Gallagher Emerge from the Woods Successful?

The American test for copyright infringement is described in That case established that infringement occurs upon proof of two elements: [1] ownership of a valid copyright; and, [2] copying of constituent elements of the work that are original. As the copyright holder of his novel, and considering the substantial evidence suggesting substantial similarities between the works, it would seem at first glance that Gallagher has the law on his side (note: a brief analysis of the infringement claim was done by IP law blogger Inayat Chaudhry ).

However, Gallagher's seemingly strong claim, based on the evident similarities between the works ("Julie" and "Jules" are not exactly miles apart), may not be as strong when applied to more rigorous legal review. Commentators have rightly that copyright laws do not protect ideas, facts, or "material traceable to timeless themes." As such, pure copying is not infringement; there must be copying of protectable (original) material. This principle will be significant if the case is litigated. Gallagher's claim admits that both works employ "a self-referential awareness of classic horror movie tropes." Attorney and blogger highlights that many of the shared clichés between the novel and movie are those "which the Scream franchise has milked for laughs over the years." Michelen concludes that Whedon's legal team will "likely argue that at best the plaintiff can prove that they are similarities but they are not substantial, and that both of them used age-old teen horror movie plot devices to move their works along."

Consequently, it appears the case will turn on the facts – are the shared elements so substantially similar that it will be impossible for the defendants to argue they are are the result of pure coincidence, and found in the realm of classic scary story-telling? In my opinion, this is not an easy case. The evidence in the complaint weighs in favour of Gallagher, but the principles of copyright law sway towards Whedon. Nonetheless, in his complaint Gallagher has demanded a jury trial. It is likely that the layperson sitting in a courtroom would see the list of similarities, the timeline of the pieces, and the evidence regarding the availability and accessibility of the novel to Whedon and Goddard and conclude that unlawful copying occurred. I would not be surprised if the powerhouses of Whedon, Goddard, and Lions Gate met with Gallagher (perhaps in a cabin) and settled this matter quietly and without the costs of litigation. Until then, I suspect Whedon will not be taking any backwoods vacations for the next little while.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. 

The post A Shared Cabin in the Woods? Joss Whedon Hit with $10 Million Dollar Copyright Infringement Lawsuit appeared first on IPOsgoode.

Unfortunately for the estate of Toronto born Joe Shuster, it appears Superman’s kryptonite, at least in regards to termination rights under of the American , is subsequent agreements which have the effect of eliminating a termination right.

Superman’s journey from his 1930s birth to his modern inception is enough to fill a .  Of relevance to Superman’s termination right is that Jerry Siegel and Joe Shuster were the co-creators of the character. The duo owned the copyright in the character Superman. In 1938, Siegel and Shuster licensed DC Comics the “exclusive right to the use of the [Superman] characters and story”. Once the copyright was assigned to DC Comics, Siegel and Shuster continued to work on Superman’s character development pursuant to a work-for-hire agreement. In 1992, Shuster passed away and his sister, Jean Peavy, was named sole beneficiary of his estate.

The above discussion brings us to our first copyright issue - a slight distinction of relevance to the case. At issue in DC Comics is the termination of copyright in the character  granted under the 1938 agreement (similar to  from June 1938), since that is the work created and licensed by Siegel and Shuster. Any other derivative additions to the Superman character which has led to are owned by DC Comics under the work made for hire doctrine. Prior to the Copyright Act, 1976, it was generally understood that copyright would belong to the employer if the work was created at the employer’s “instance and expense”. Thus, Siegel and Shuster’s contribution post-licence, and any derivative additions to Superman, are not at issue in DC Comics since works created under work made for hire agreements cannot be terminated. What is at issue is the termination of the original Superman character’s copyright - not the totality of his modern appearance.

Under the Copyright Act, 1976, the United States Congress provides authors and their statutory successors with the opportunity to regain rights that were granted away via agreements and licences. This “second bite of the apple” allows authors and their heirs to regain their copyrights in order to re-bargain for beneficial agreements with licensees. For copyrighted works which were licensed prior to January 1, 1978, termination rights may be claimed at the end of the 56th or 75th year from the date copyright was originally secured.  For the estate of Shuster, they are wishing to terminate the copyright in Superman after the end of the 75th year, in October of 2013.

In order to terminate under §304, notice must be filed within a five-year window and must meet the of the United States’ Copyright Office. Shuster’s estate does not encounter issues with meeting the time frame nor the requirements; the biggest stumbling block is a 1992 agreement between Shuster’s estate and DC Comics.  In 1992, Shuster’s sister (and brother, Frank Shuster) signed an agreement with DC which stated DC would pay Peavy $25,000 per year for life as well as pay off Shuster’s debts in exchange to settle “all claims to any payments or other rights or remedies which [Peavy] may have under any other agreement or otherwise, whether now or hereafter existing regarding any copyrights […] in any and all work created in whole or in part by […] , Joseph Shuster, or any works based thereon.”

The 1992 agreement has surfaced as Superman’s (or at least Shuster’s estates) kryptonite. Despite the language of which states, “termination may be effected notwithstanding any agreement to the contrary”, American courts in the Ninth and Second circuit have interpreted §304(��)(5) otherwise. Courts have permitted subsequent agreements to revoke and replace the original agreement, thus eliminating the statutory termination right. Based on the American jurisprudence, the key for the subsequent agreement is that it must be substantially more beneficial to the authors or their heirs in order to eliminate the statutory termination right.

In , the Ninth Circuit held that a 1983 re-grant agreement, which superseded 1930 and 1961 licences of Winnie the Pooh, eliminated the statutory termination right. The 1983 agreement, which was described as an adjustment of royalties, increased the royalties of the heirs in question by 400% in exchange to not exercise their statutory termination right. The new grant, which was a more lucrative deal for the author’s heirs, was upheld by the Ninth Circuit as not being an “agreement to the contrary” under §304(��)(5). The Milnes were denied their statutory termination right since they “were able to obtain considerably more money as a result of the bargaining power wielded by the author’s son”.

Following suit, the Second Circuit court in discussed a 1994 agreement by Elaine Steinbeck which re-licensed her late-husband John Steinbeck’s copyrighted literary works. Several of John Steinbeck’s works were governed by a 1938 agreement with Penguin Group. In 1994, Elaine Steinbeck, the owner of John’s copyrights, entered into a “new agreement for continued publication” with Penguin. The agreement included prior licensed works and additional literary works and “changed the economic terms of the 1938 agreement, mostly to Elaine Steinbeck’s benefit…”. Under the 1994 agreement, Penguin was required to provide larger annual guaranteed advanced and royalties. The language of the 1994 agreement stated it would “cancel and supersede the previous agreements”.

The court in Steinbeck held the 1994 agreement eliminated Elaine Steinbeck’s statutory termination right. In reaching their conclusion, the court emphasized Elaine Steinbeck’s substantial benefits under the new agreement. Since Steinbeck had the ability in 1994 to renegotiate the terms of her previous agreement “to her benefit…”, the court found that “by taking advantage of this opportunity, she exhausted the single opportunity provided by statute to Steinbeck's statutory heirs to revisit the terms of her late husband's original grants of licences to his copyrights”.

Despite the above cases, illustrates subsequent agreements will not supersede previous agreements if the benefit to the authors or authors’ heirs is insubstantial. In Classic Media, various copyrights were assigned for Lassie by the defendant Mewborn (one of three heirs of the original author Eric Knight) in 1976 for $11,000. In March of 1978, another agreement was signed which granted nearly-identical copyrights in exchange for $3,000. The plaintiff-licensee objected to Mewborn’s notice of termination in 1996, and pointed to the 1978 subsequent agreement.  Here, the Ninth Circuit distinguished Steinbeck and Milne and held that the 1978 agreement did not eliminate Mewborn’s termination rights since the 1978 agreement was only a transfer of ancillary rights for $3,000; it did not revoke and supersede the previous assignment of rights.

The above cases were cited in DC Comics, but U.S. District Court Judge Otis Wright did not mention whether or not the substantiality of the benefit obtained by the author or author’s heirs is relevant in subsequent agreements. As Eriq Gardner of The Hollywood Reporter , Judge Wright’s reasoning in DC Comics is likely to “trigger an appeal”. Whether or not the substantiality of the benefit received by Shuster’s heirs will be a major issue on appeal remains to be seen. It is clear that a spectrum exists between the benefits received in Milne/Steinbeck and Mewborn, and the $25,000 per year and additional debt clearing provided by DC Comics lays somewhere in the middle… perhaps, in my opinion, leaning a bit closer to Milne/Steinbeck's substantiality.

Adam Jacobs is a JD Candidate at Western University, Faculty of Law and is currently on exchange at Southwestern Law School in Los Angeles, California.

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Unique to the US, termination rights allow an author to reclaim ownership to their creation from a publisher after 35 years, “notwithstanding any agreement to the contrary.” This means that starting in 2013, recording artists and songwriters can begin to regain control over work they signed away rights to at the start of their careers. US legislators instituted termination rights in an attempt to help authors who may have been locked into unfavourable and exploitative deals at the beginning of their career.

In the case at hand, the song publishing companies Scorpio Music and Can’t Stop Productions tried to prevent Willis from invoking his termination rights with a two-pronged attack. The companies claimed that the songs in contention were created over the course of his employment. Following this logic, the songs could then be classified as “works for hire,” which are an exception to termination rights. The publishers’ legal team eventually withdrew this argument. Copyright experts that this line of reasoning is inherently weak, as recording artists from the 70s and 80s are likely to be seen by courts as independent contractors rather than employees. The companies also contended that as a co-author of the songs, Willis had “no right, title or interest in the copyright” and thus lacked legal standing to invoke termination rights. On this second point, the court ruled that Willis had sufficient standing.

The case at hand is particularly important for several reasons. To begin with, it is the known of dealing with termination rights with respect to music publishing. This case will certainly not be the last, as famed performers such as Tom Petty, Bryan Adams, Tom Waits and Loretta Lynn have to regain control over some of their compositions once 35 years have elapsed since their creation. Secondly, the case sets precedent that termination rights will be upheld even if an author of a work was not the sole contributor to the creation.

So what does this ruling mean for the musical landscape? For one, Mr. Willis’s case should have record companies shaking in their boots. As it has been , the music industry is in turmoil. Financial analysts have that the music business is worth less than half of its value ten years ago. One way that recording companies have been able to stay afloat has been through the use of back-catalogues to generate profits through licensing. Without control over important back-catalogue works such as “Back in Black” by AC/DC (currently owned by Warner Music Group), “The Wall” by Pink Floyd (Sony and EMI) and “Thriller” by Michael Jackson (Sony) it is likely that record companies will suffer even greater financial losses.

Record companies should also be aware that it is unlikely that they will garner significant sympathy from judges should they choose to litigate against artists. While they have indeed invested money, time and resources in developing the value of copyrighted material, record companies have been notoriously artists for decades and continue to do so. Thus, the concerns 1970s litigators had about under-compensation of artists for creative work still exist. It is unlikely that record companies will be successful in their legal battles while termination rights still have a purpose. Moreover, the termination rights issue has been in the companies’ sights since 1978. The fact that record labels, both major and independent, have failed to come to a unified position on this issue signifies companies’ unwillingness to simply re-negotiate higher royalties with artists in order retain song rights. Lack of negotiation and litigation against artists will likely attract negative publicity and add to the public’s perception of record labels as “” villains.

While the Willis case is a win in the artists’ corner, many questions remain unanswered: can foreign groups such as Led Zeppelin exercise termination rights on their American recordings even if their original contract was signed in the another country? Will the “works for hire” argument be successful once it is formally adjudicated? What will the court decide is the extent of co-authors’ interests in various compositions?

Elena Iosef is a JD candidate at Osgoode Hall Law School.

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