Tommy Hilfiger failed to register its flag as a copyrighted work in the US. The US Copyright Office refused to register the following image:
According to the company, this flag was sufficiently original due to the fact that its representation combines the letters T, J, and H which stems from the name Thomas J. Hilfiger and three colors. Apart from this, the red rectangle element means “Going home” from a voyage.
The Office disagreed with these claims stating that the work is not original enough in order to be registered. The aforementioned combination of colors and shapes is standard and “exceedingly common for flag designs”. There wasn’t sufficient creativity in that regard. What the author of the work wants to convey as meaning is irrelevant for the originality of the work according to the US copyright case law:
“A work may be complete rubbish and utterly worthless, but copyright protection may be available for it, just as it is for the great masterpieces of imaginative literature, art and music. A work needs only be “original” in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of others. (Mummery LJ, ). “
Hans Eriksson and Petter Larsson (Westerberg & Partners Advokatbyrå Ab) published quite an interesting article for Lexology that concerns a lawsuit for copyright infringement in Sweden.
Back in 2016, a local retailer started to import watches with a minimalistic design that resembled such produced and offered by the well-known Sweden watch manufacturer Daniel Wellington.
A copyright lawsuit followed. The defendant position of the retailer was that the watch design at hand wasn’t original taking into account prior art which clearly showed a variety of other watches on the market that shared similar design characteristics.
Based on this, the first instance court dismissed the copyright infringement claim.
The decision was appealed. The Patent and Market Court of Appeal came to the conclusion that there was a copyright infringement. The reason was that the authors of Daniel Wellington’s watch had made small design choices to create the watch which was sufficient for the watch originality.
Moreover, the court addressed the defendant’s mosaic of prior art components by stating that the fact that a product consists of previously known elements does not rule out copyright protection if it displays originality when considered in its entirety.
The European Commission published answers to a variety of questions regarding the Copyright reform that has been approved recently. The questions are as follow:
1. The European Parliament voted on the new copyright rules at EU level – what are they about?
2. Why do we need to modernise the EU copyright rules?
3. Are the new copyright rules limiting users and their freedom online?
4. Will the Directive impose upload filters online?
5. Will the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
6. How will the new Copyright rules tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called ‘value gap’)?
7. How will the new copyright rules on user-uploaded platforms benefit the users?
8. What are the services covered by the new rules on user-uploaded platforms?
9. What will be the special regime for startups and smaller enterprises?
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
11. How will the new press publishers’ right work?
12. Are small and emerging press publishers going to be affected by the reform?
13. Is the new Copyright Directive creating a “hyperlink tax”?
14. With the new rules, will the use of “snippets” be forbidden?
15. How will the new Directive benefit journalism and journalists?
16. How will the Directive ensure fair remuneration for individual authors and performers?
17. How will the new copyright rules strike a fairer balance in the relationships between creators and their contractual partners?
18. What is the contract adjustment mechanism? Does it interfere with contractual freedom?
19. What is the revocation mechanism and why is it needed?
20. What are the new exceptions to copyright laid down in the Copyright Directive?
21. How will the new copyright rules benefit researchers?
22. What is the purpose of the other, general, text and data mining exception?
23. Who will benefit from the new teaching exception?
24. Will the new copyright rules enhance the preservation and availability of cultural heritage?
25. What will it change for users with regards to “public domain” content?
26. How will the new copyright rules foster the availability of EU audiovisual works on video-on-demand platforms?
You can find the answers here.
The EU Council has approved the DSM Directive. You can see how every Member State voted below:
The next step is the transposition of this Directive into the national legislation of every EU Member State, which has to be done within 24 months.
Source: IP Kat.
Today, 26.03.2018, the European Parliament approved the controversial copyright reform with 348 votes in favor, 274 against. This brings the reform one step closer to its final adoption in the EU. What will follow is formal approval by the European ministers. In a nutshell this reform concerns:
- Social media platforms will have to keep even a closer eye on every possible copyright violation;
- Web content providers will have to sign license agreements with right holders;
- News providers will have to negotiate and get a license from publishers in order to use their news and articles;
- Non-profit organizations, including websites such as Wikipedia, are not bound to these rules;
- Startup companies with annual turnover up to 10 million dollars are excluded too.
More information can be found here.
1. No likelihood of confusion deemed between “an apple” and the letter „J“. For more information here.
2. Calculating copyright infringement damages using hypothetical license fees. For more information here.
3. Evaluation of EU legislation on design protection. For more information here.
Emil Jurcenoks and Peter Nørgaard reported for one interesting and at the same time an important decision of the Danish Supreme Court.
The case concerns advertising photographs made by the Danish supermarket chain Coop which contained among other tableware by the Danish designer Kasper Heie Würtz for which use, however, there wasn’t a concent by the designer nor any remunerations.
A lawsuit was been initiated. According to Coop there was no copyright infringement because the Danish legal practice allows minor use of copyrighted works in case that the works are not famous and the use is only as a background and minimal.
Würtz won the case before the first instance Maritime and Commercial High Court.
The Supreme Court upheld this decision. According to the court, Coop failed to prove that there is a legal practice which allows such copyright exceptions for applied art for advertising purposes. What’s more, the Court considers the use at hand as not minor due to the fact that all photographs contain the aforementioned tableware. An exception is possible but in very narrow cases where relevant works are not distinctive enough and are not essential elements in the reproductions.
The full article is accessible here.