Sculpture, logs, and a moral copyright lawsuit in the US

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The 1709 blog published an interesting article which concerns an alleged infringement of moral copyrights over the sculpture “Log Cabin” made out of wood and created by Cady Noland in the nineties in the US.

The collector Wilhelm Schurmann bought this work and gave it to a museum where it was being exhibited for 10 years. After that, the work was been transferred to Michael Janssen Gallery.

Over the years “Log Cabin” had deteriorated because of which after consultation with a conservator it was been reconstructed with new materials and new logs.

This provoked a lawsuit initiated by the author according to which she hadn’t given any permission for such reconstruction which in turn infringed her moral copyright over the work.

According to the US Visual Artists Rights Act of 1990 (VARA): authors of a work of visual arts have the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and… to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

More information can be found here.

 

 

Furniture and originality in Switzerland

The Swiss Federal Supreme Court has ruled in a copyright lawsuit regarding an individual character of furniture.

The case at hand concerns a design of chairs and bar stools created by the Swiss designer Max Bill in the 50s and 60s of 20 century. These designs have been used by Horgenglarus since them producing the relevant furniture.

                                   bill_kreuzzargenstuhlBill_Barhocker

After the death of Max Bill his copyrights started to be managed by the Bill Foundation which gave a license to Horgenglarus that was terminated in 2001. The manufacturer continued to use the designs which provoked a lawsuit. Horgenglarus contended that designs at point did not enjoy any copyright protection because they did not have the necessary individual character to be considered “works” in the sense of copyright law.

The commercial court upheld only the copyright protection over the frame chair considering the bar stool as lacking individual character taking into account the previous similar stools.

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The Supreme court reversed this decision stating that “the degree of individuality (originality) required for a work to have individual character depended on the degree of freedom the category of works permitted. If the degree of freedom was limited, even minor deviations from known designs could convey individual character.”

According to the court the fact that separate elements from the stool are similar to the previous one it doesn’t mean that the relevant design is lacks of originality because the assessment requires the entire design to be taken into consideration.

Based on the foregoing, the court considers that the individual elements had never been combined in the way Max Bill combined them so the work was unique at the time of creation.

More information can be found here.

Source: IP Kat.

 

Brief IP news

briefs_1131.Korea: Direct link to similar patents in KIPRIS. Form more information here.

2.LinkedIn’s Patent Strategy. For more information here.

3.Safeguarding innovation through confidentiality. For more information here.

Information from Intellectual Property Center at the UNWE. More information can be found here

Warner Bros settled a dispute over J.R.R. Tolkien’s books

Lord-of-The-Rings-Logo-PNG-FileWarner Bros has reached an agreement with HarperCollins, which manages the J.R.R. Tolkien’s estate over “The Hobbit” and “The Lord of the Rings” books. Based on this the lawsuit between them will be discontinued.

HarperCollins claimed that Warner Bros has been using both works outside the scope of the agreement signed in 1969. According to that document, Warner Bros can use these works for limited merchandising purposes. Warner Bros sold different video games based on both books despite the fact that the agreement doesn’t cover any electronic or digital rights.

HarperCollins sought damages up to 80 million dollars.

Source: WIPR.

BitTorrent under attack – an EU Court decision

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The European Court ruled in Case C‑610/15, Stichting Brein Ziggo BV, XS4ALL Internet BV. This case concerns the following:

Stichting Brein is a Netherlands foundation which safeguards the interests of copyright holders.

Ziggo and XS4ALL are internet access providers. A significant number of their subscribers use the online sharing platform TPB, an indexer of BitTorrent files. BitTorrent is a protocol through which users (known as ‘peers’) can share files. The essential characteristic of BitTorrent is that it divides files for sharing into segments, thus removing the need to rely on a central server to store those files, which lessens the burden on individual servers during the sharing process. In order to be able to share files, users must first download specific software called ‘BitTorrent Client’, which is not provided by the online sharing platform TPB. ‘BitTorrent Client’ is software which allows the creation of torrent files.

Users (called ‘seeders’) who wish to make a file on their computer available to other users (called ‘leechers’) have to create a torrent file through their BitTorrent Client. Torrent files refer to a central server (called a ‘tracker’) which identifies the users available to share a particular torrent file as well as the underlying media file. These torrent files are uploaded by the seeders to an online sharing platform, such as TPB, which then proceeds to index them so that they can be found by the users of the online sharing platform and the works to which those torrent files refer can be downloaded onto the users’ computers in several segments through their BitTorrent Client.

‘Magnet links’ are often used in place of torrent files. These links identify the content of a torrent file and refer to it through a digital fingerprint.

The torrent files offered on the online sharing platform TPB relate mainly to copyright-protected works, without the rightholders having given their consent to the operators or users of that platform to carry out the sharing acts in question.

In the context of the main proceedings, Stichting Brein’s principal request is that Ziggo and XS4ALL be ordered to block the domain names and IP addresses of the online sharing platform TPB in order to prevent the services of those internet access providers from being used to infringe the copyright and related rights of the rightholders, whose interests Stichting Brein protects.

The court of first instance upheld Stichting Brein’s requests. However, these were rejected on appeal.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) notes that, in the present case, it has been established that the actions of the online sharing platform TPB make protected works available to the public without the rightholders’ consent. It has also been established that subscribers to Ziggo and XS4ALL, through this platform, make protected works available without the rightholders’ consent and thus infringe the copyright and related rights of those rightholders.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) notes, however, that the Court’s case-law does not allow it to reply with any certainty to the question as to whether the online sharing platform TPB also communicates works to the public within the meaning of Article 3(1) of Directive 2001/29, in particular:

–  by creating and maintaining a system in which internet users connect with each other in order to be able to share, in segments, works present on their own computers;

–  by operating a website from which users can download torrent files which refer to segments of those works; and

–  by indexing the torrent files placed online on this website and by categorising them in such a way that the segments of those underlying works can be located and the users can download those works (as a whole) onto their computers.

Under those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:

‘1. Is there a communication to the public within the meaning of Article 3(1) of Directive 2001/29 by the operator of a website, if no protected works are available on that website, but a system exists … by means of which metadata on protected works which are present on the users’ computers are indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

2. If Question 1 is answered in the negative:

Do Article 8(3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?’

The Court’s decision:

The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.

A copyright lawsuit against The Beverly Hills Hotel

MainWebPhoto_w_720Ireland-based Iconic Images has initiated a lawsuit against The Beverly Hills Hotel in Los Angeles for copyright infringement. Iconic is a company that manages copyrights over photographs.

In the case at hand, Iconic alleges that the hotel was using without a license an image by photographer Terence O’Neill, which rights are managed by the company.

The photo known as “The Morning After”, which was captured in the same hotel in 1977, represents the American actress Faye Dunaway after the night when she received an Oscar.

Iconic points out that although there were some negotiations with the hotel no result followed. What’s more the hotel expanded the use of this image in different advertisements without permission to do that.

This is an example of the fact that even in the case of older works the relevant copyrights have to be properly negotiated and gained. The reason for this is the fact that such copyrights have a duration the life of the author and 70 years after that.

Source: WIPR.