bob tarantino

Entertainment, Media and IP Law 03.25.09

Peeking behind the curtain:  Michael Geist comments on the decision of an Ontario judge to order the disclosure of all information relating to discussion board participants by the owners of the website.  Geist's conclusion: "I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met."

The grandest licensing scheme of them all:  Geist (him again) reports and comments on the Songwriters Association of Canada proposal to create "a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms".  The most interesting part of the initiative is its potential for extension to video works as well, since ACTRA has evidently expressed some tentative openness to considering the issue.

Bloodsport:  Barak Y. Orbach has written a paper about the origins of US film censorship - which oddly enough apparently has its origins in films of boxing matches in the late 1800s (ht: Media Law Prof Blog).  Download the paper here.

The most painful headline ever:  In reporting on the news that a Toronto firm has been tasked with licensing and protecting the trade-mark interests of Bob Marley's estate, the CBC elected to use this headline: "Toronto firm gets up, stands up for Bob Marley trademark rights".  Ow.  (Oh, and shouldn't the CBC style guide prefer the Canadian iteration "trade-mark" to the American "trademark"?)

"It costs money even to talk to the copyright holders": Everybody else has already talked about Sita Sings the Blues and its innovative release strategy, but I would be seriously remiss if I didn't mention it as well.

Consistently in the middle of the pack:  The Canadian Intellectual Property Office released its 2007-2008 Annual Report a few weeks ago.  9,321 copyright applications were received, compared to over 47,000 trade-mark applications, 5,174 industrial design applications and 0 (count 'em) integrated circuit topography applications.

Entertainment, Media and IP Law 03.15.09

New techniques: A couple of interesting stories this past week about emerging Canadian talent - David and Ian Purchase used YouTube to get noticed by Hollywood, and one-eyed Toronto filmmaker Rob Spence is planning on using a camera embedded in a fake eye to film a documentary about "the rise of global surveillance" (also here).

Flashpoint opens the door: One of the funny things about Hollywood is the herd mentality - if something works once for one guy, everybody's got to follow suit.  Thankfully, this time the trend is working in favour of Canadian film and television producers.

Defamed today, defamed forever: An interesting discussion over at slaw about whether the time period for launching a defamation action over an online publication should begin running from the first time it was placed online or whether it should start afresh every time the online publication is accessed regardless of how long that is after initial publication (in England, the answer is evidently the latter; in the US, the former).

New Media Fund? Meh: Concerns are expressed about the newly constituted Canada Media Fund and conflicts of interest.

Backstage blogging: Gordon P. Firemark muses on the dangers of letting talent talk about their work experiences while still on the job.

Fairey Use?  More discussion on the AP/Richard Fairey copyright dispute here (Knopf) and here (Wired).

ImageStamper: Plagiarism Today provides some in-depth coverage on an interesting new service which "stamps" a Creative Commons license onto digital images.

Inaccurate sales figures? Surely you jest: Clive Cussler ordered to pay nearly US$14 million to production company over misrepresentation of the number of copies his novels had sold.

The children are our future: Fascinating interview with Terry McBride of Nettwerk Music Group here.

Entertainment News

Some interesting developments in the Canadian media and entertainment landscape over the past few days:

• the federal government has confirmed that it will not be providing additional funding to the CBC this year

• British Columbia saw a nearly 30% increase in motion picture production spending in 2008 (which coincided with increased tax credits)

• the Canadian Television Fund (CTF) is being merged with the Canada New Media Fund, to create the Canada Media Fund (inventiveness in nomenclature is not a characteristic much prized among the bureaucracy)

• John Doyle ponders how it is that television stations are going out of business when people haven't stopped watching television, and concludes that there is no "crisis" and that it's largely "part of a strategy to force a radical redrawing of the Canadian TV landscape"

Violent Video Game Laws

There's lots of coverage of news that the 9th US Circuit Court of Appeals has struck down California's legislation which tried to restrict the sale of "violent video games" to minors - in the spirit of the media hysteria which accompanied Barack Obama's visit to Ottawa this week, let's try for a Canadian angle, shall we?

Many Canadian provinces have similar legislation in place which seeks to prevent minors from purchasing violent video games, none of which, to my knowledge, have been successfully challenged in court.  There are, however, structural differences in the US and Canadian legislation which are likely material to any potential court consideration.

Here is the text of the original California bill.  Here is the 9th Circuit Court of Appeals decision in Video Software Dealers Association v Schwarzenegger.  Ars Technica has a series of detailed posts covering the bill and the history of judicial action against it (in reverse chronological order) here, here, here and here.

And here is the comparable Ontario regulation (under the Film Classification Act, 2005), which makes it illegal to distribute or exhibit a video game which has been rated "Mature" to anyone under 17 years of age (see section 6(2)) and also illegal to distribute or exhibit a video game which has been rated "Adults Only" to anyone under 18 years of age (see section 6(3)).

The primary distinction between the two pieces of legislation relates to who makes the classification.  In California, it would have been (the bill was never actually enforced due to the court challenges) the government itself making the decision - in Ontario, that task has been delegated to the Entertainment Software Rating Board, which is an industry association.  The California bill contains rather extensive definitions of terms such as "violent video game", "cruel" and "serious physical abuse" which are intended to guide government bureaucrats in making classification decisions; the Ontario regulation defers the entire exercise to the industry association.  Freedom of expression doctrines in Canada and the US are... perhaps not "radically" different, but certainly different enough that making comparative guesses in situations like this is exceedingly difficult - that being said, I would be surprised if a Canadian court concluded that the existing regulations violated the Charter.

Photographs and Privacy

Via the Canadian Privacy Law Blog, news that the European Court of Human Rights has ruled (in Reklos and Davourlis v Greece) that a minor's right to respect for "private life" was violated when a hospital hired a photographer to take pictures of a baby without first obtaining the consent of the parents and then also refusing to give possession of the negatives to the parents. 

The decision itself is available here (only in French).

The press release (in English), which includes a description of the facts of the case, is available here.

The privacy right which was violated is contained in Article 8(1) of the European Convention on Human Rights:

Everyone has the right to respect for his private and family life, his home and his correspondence.

That right is subject to the limits contained in Article 8(2):

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

No similar decision is possible in Canada pursuant to the federal Charter of Rights and Freedoms (which doesn't recognize an explicit right to privacy), but the ECHR decision is very similar to that in the Supreme Court of Canada decision in Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591, which recognized that the right of privacy accorded pursuant to section 5 of the Quebec Charter of Human Rights and Freedoms includes a right of control over the use of one's image, even if, as in Aubry, that image is photographed in a public place:

The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.

In Canadian jurisdictions outside Quebec, I'm not aware of any similar decision based on their provincial privacy statutes (the existence and extent of coverage of which varies from province to province) (though certainly the wording of some of the statutes is broad enough to contemplate a similar result), and no similar decision could be made under PIPEDA.

UPDATE: I should probably clarify what it is that is so, to use an imprecise term, radical about the ECHR decision from the standpoint of Canadian law (outside of Quebec): the breach of the privacy right is evidently not predicated on a "commercial use" - in other words, it appears to have been the taking of the photograph itself, and not any subsequent use of the photograph, which violated the privacy right.

The Salmon Arm Salute

Dean Beeby at the CP wrote an excellent, nicely detailed story about the Ontario Film Review Board, focusing on its recent decision regarding the social crudeness of a depiction of someone "flipping the bird".  The OFRB's own (rather informative) website is here.

The board, which classifies all mainstream films in the province, amended its manual so that the rude salute now will help knock a film from a General (G) designation into the Parental Guidance (PG) category.

The gesture, sometimes called “flipping the bird” or simply “the bird,” is rated the equivalent of an animal humping someone's leg, according to the manual's section on assessing the psychological impact of mainstream films.

And the “finger” is now classified as one notch more obnoxious than “a little bit of farting, belching” in the crude behaviours category, in the latest edition of the manual, obtained by The Canadian Press under Ontario's freedom-of-information law.

The gesture, though, is considered less obnoxious than a teenager vomiting and his friend urinating onto bystanders, say the arcane guidelines in the 32-page document.

The Other James Brown

This one should be fascinating to watch:

Former Cleveland Browns player Jim Brown is suing Electronics Arts and Sony for using his image in EA's Madden NFL series without his authorization ... [arguing] that video games had not yet been invented when he was playing football in the NFL, and he therefore never had the chance to make the decision to sign away the rights to his image to be used in video games. (Davis LLP Video Game Law Blog)

EA evidently has an agreement in place with the NFL which presumably purports to grant EA the right to use the name, image and likeness of retired players.  Information on how Canadian legislatures and courts protect the personality rights of individuals (both celebrity and non-celebrity) can be found here (note: the information at the preceding link is slightly outdated) and here.

US Online Public Performance Royalty Decision

The big web-related news late last week was the release of the US federal district court decision which set the license fees that AOL, RealNetworks and Yahoo! have to pay to ASCAP for public performance of musical compositions (a copy of the full decision can be read here).

There is a wealth of information in the decision (despite the redaction of much of the financial information), and it serves as a handy guide to the range of licenses which are in place for public performance royalties.  At page 83 begins a discussion of the "experimental" licenses which ASCAP had been offering to online service providers, which contained a 3% license fee.  Starting at page 93 is a description of the license agreements which ASCAP had entered into with a variety of music users (inlcuding Music Choice (which provides music to satellite and cable TV subscribers), the Big Three US TV networks, commercial radio stations, cable TV stations, and "music intensive" cable TV stations.  At page 98 begins a discussion of the license agreements entered into by the online services with record companies for the right to communicate music videos.  At page 105 begins a discussion of the licenses which have been entered into by BMI (a rival public performance rights society).  Starting at page 116 is the court's conclusion, which makes for interesting reading (well, for an entertainment lawyer - YMMV), as it details all of the factors the court took into account in arriving at its rate of 2.5% of adjusted "music use" revenues.

Glancing through the decision put me in mind of a comment I had started to write about a year ago relating to the then-recent decision by the Canadian Copyright Board with respect to mechanical royalties payable for online music sales.  Mechanical royalties and public performance royalties are obviously rather different, but the opening paragraph of the comment conveys (rather poorly, reading it now), one of the frustrations that I think many in the industry feel:

It took nearly three years to the day, but on March 16, 2007 the Canadian Copyright Board released its tariff decision regarding “mechanical royalties” for online music sales.  To summarize: the royalty is 8.8% of the retail sale price of a “permanent download”, except that there is a minimum royalty of $0.59, unless the song is sold as part of a bundle, in which case the minimum royalty is $0.45; that being said, there is an entirely arbitrary “temporary discount” of ten percent to the foregoing rates for the life of the tariff.  Oh, and this tariff expires on December 31, 2007, so all of this could and likely will change.  And we haven’t even mentioned the other types of online uses to which the tariff applies (“limited downloads” and “on-demand streaming”).  Confused yet?

Which is a long way of saying that it really is a shame that the various regulatory and governance structures in place (and I'll include as a "governance structure" freely-contracted agreements) have been so hard-pressed to make "final" determinations of these issues (I use the quotes around "final" advisedly, since as noted above in the Canadian context, the tariffs expired at the end of last year - and as the Copyright Board noted in its April 2008 decision relating to the next round of hearings to establisht the post-2007 rates, those new rates could be "lower, higher or the same").  SOCAN's Tariff 22A, which covered online public performance royalties in Canada the period from 1996 to 2007 was released in October 2007 - in other words, if you were in a position to be streaming music online in 1996, it would be eleven years before you found out what public performance royalties you owed. 

It's been, what, nine years since online availability of music started becaming relatively widespread (with the rise of mass internet adoption and broadband availability)?  And only it's only in the last couple of years that we're starting to get clarity on what that costs?  Amazing.  And, without getting too melodramatic, tragic. 

This level of complexity and uncertainty is troublesome, since it acts as a retardant to market entrants and does its part to prevent a healthy multiplicty of options in the marketplace.  Having to set aside reserves against a contingent liability (without having any clear idea as to when that liability will crystallize) means that capital is lying idle, rather than being profitably re-invested.  Smaller US players (i.e., those without the financial or legal wherewithal to embark on a fight through the courts with ASCAP) were put in the position of signing the "experimental" licenses - at a rate higher than what the rate court found was fair in the context of larger competitors.  And the decision-makers are still playing catch-up.  When the history of the internet is written, I'm guessing the chroniclers will shake their heads in disbelief at how intransigent both the actors and the regulators were in addressing these issues in a timely manner.

Richie Loses

The decision in the Richie Ramone case can be accessed here.  The short version: Richard Reinhardt (p/k/a Richie Ramone) was a member of punk band the Ramones from 1983 to 1987, during which time he wrote six songs for the group.  Richie argued that his agreement with the band's corporation (Ramones Productions) only allowed the band to exploit his songs by means of physical exploitation (i.e., vinyl albums, cassettes, CDs, etc.) and did not extend to digital methods of exploitation.  Richie sued, inter alia, the band, Apple and Wal-Mart for unauthorized use of his copyrighted compositions.  Richie lost - the court (see esp. pages 14-16 of the opinion) held that the contract on its face contemplated exploitation by means of "all forms of reproduction .... now or hereafter known", which includes digital modes of reproduction and transmission.  Even shorter version: always draft your rights language clauses expansively, and make liberal use of fun phrases like "all methods, media and modes of exploitation, communication, reproduction and transmission", "now known or hereafter devised", "throughtout the universe and in perpetuity" and "including, without limitation".

"overlapping laws and sky-high costs"

As previously noted, few people are as finely attuned to the mindnumbing complexities and costs of copyright clearance issues as documentary producers.  The issue is still a hot one:

Documentary filmmakers say it's getting tougher to make independent productions because of growing restrictions on what images and sounds they can use.

The battle over rights issues was a hot topic of discussion at Toronto's Hot Docs Film Festival, where a session last week about fair use was packed with filmmakers from around the world.

Many filmmakers fear they'll soon no longer be able to fully document our pop culture and mixed media age because of the high cost of using footage and sound, and the consolidation of rights to this material in a few hands.

Too much can be made of the "consolidation" issue - it wouldn't matter whether the rights are held by one corporate entity or a million individual people (if anything, the former would at least be more efficient from a clearance standpoint) - but it all speaks to the need for a robust fair use mechanism that is embedded in the structure of the copyright regime.  As the article notes, this is not just a concern for Canadians:

Italian filmmaker Marco Visalberghi says overlapping laws and sky-high costs have made documentary creation difficult in the European Union.

... As a result, directors are abandoning anything with a hint of pop culture content, Visalberghi told fellow filmmakers in Toronto.

As a reminder, the Documentary Organisation of Canada's "white paper" on copyright clearance issues provides some excellent background information on the issue (with the caveat, mentioned in my earlier post, that they seem overly fond of throwing around the word "censorship" when it comes to clearance matters).

Another Salvo in Charlie Wilson's War?

Arthur Kent (latterly the "Scud Stud") is "suing the makers of Charlie Wilson's War after footage Mr. Kent produced for a 1986 BBC news program about the Soviet Union's conflict in Afghanistan appeared in the 2007 Universal Studios movie without his permission".  It would be interesting to see the claim, as it appears that Kent is not only requesting monetary damages, but an injunction against further exploitation of the film - at least until it is altered to "eliminate anything associated with him". 

A number of questions arise from the brief description provided by the news report:

• who owns copyright in the footage used in the movie?  I'm not familiar with how the BBC handles copyright from independent producers (assuming Kent was not a BBC employee at the time he created the footage), but I would have thought the BBC would have acquired copyright in any materials which were produced at its behest.

• is Kent asserting a moral rights claim (perhaps not - the story seems to indicate that the claim is being brought in Los Angeles, and US copyright law provides exceedingly week protection for moral rights)? The report states that Kent "claims that his footage was re-edited and taken out of context ... images from Mr. Kent's documentary appear without their accompanying narration, and at other times narration is lifted from the documentary and is heard over other footage" - even if Kent does not own copyright in the footage in question, that would seem to be ripe territory for a moral rights claim, as distinct from a copyright claim.

In any event, this is a classic "errors and omissions" claim for a motion picture - a timely reminder of the importance for counsel to play an ongoing role in vetting all materials which are incorporated in a film project.