Wednesday, April 21, 2010
Thursday, April 15, 2010
11th Cir: Copyright Owners Deliver Artworks At Their Peril - Implied License Doctrine Swallows Copyright Act
The Copyright Act provides:
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
(emphasis supplied).
§ 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
The 11th Circuit basically tossed out the bolded language in a recent decision captioned Latimer v. Roaring Toyz, Inc., 2010 WL 1253090 (11th Cir. April 2, 2010) and radically expanded the doctrines of implied license and constructive delivery.
Here's the scenario, wildly oversimplified:
Artist paints artwork onto motorcycle. Knows it will be used in photography, stream of commerce. Motorcycle company gets no release. Artist is not plaintiff, has nothing to do with the case, but 11th Circuit spends a lot of time on him.
Plaintiff is motorcyle photographer. Takes photos at motorcycle company's request. Orally grants certain publication rights and thinks he owns/reserves the rest. Photographer has granted first publication rights to Two Wheel Tuner mag. Instead of distributing his high quality digital files per his instructions, company distributes them to press who unwittingly publish them, including defendant Hachette's Cycle World.
Motorcycle company who uses photos claims that they were unauthorized derivative works because the photographer didn't have a release from the guy who made the paintings on the motorcycle.
11th Circuit finds that the fact that motorcyle photographer delivered photographs without clear reservation of rights grants an implied license to motorcycle company to do whatever it likes. FURTHER finds that anyone downstream has "constructive delivery" from the photographer and can do whatever they like without getting written permission.
Here is the 11th Circuit's new rule:
"Thus, an implied license will be limited to a specific use only if that limitation is expressly conveyed when the work is delivered"
In other words, if you deliver your photograph to someone and YOU don't write down that they can't do whatever the heck they want with it, you lose your copyright to that person and to anyone they give it to.
This case is really a breathtaking blow to photographers who often deliver their works hoping that a potential client will fall in love and license them. Since the photographer said he knew that Kawasaki "might" use them, the 11th Circuit threw out his affidavit as a "sham".
In other Circuits, one must generally obtain written permission to use a photograph, the implied license doctrine is narrowly construed.
In addition, the 11th Circuit held that the photographer must prove that he gave the motorcycle company a course in copyright law to prevail:
Kawasaki asserts that Latimer did not expressly communicate to Kawasaki any restrictions on the use of the photographs. However, Latimer contends that all of his communications with Kawasaki went through Roaring Toyz and that he granted Kawasaki permission to use the photographs for a specific purpose-a media display at Bike Week. Thus, the question here is whether Latimer delivered a warning adequate to put Kawasaki on notice that certain uses of Latimer's photos would constitute copyright infringement.
Latimer v. Roaring Toyz, Inc., 2010 WL 1253090, 11 (11th Cir. April 2, 2010).
It should be noted that the 11th Circuit purported to give a victory to the photographer, but the burdens of proof that have been spelled out are highly problematic and appear to be inconsistent with the plain language of the Copyright Act and a body of case law that generally puts photographers in the driver's seat when there is an unauthorized publication of their works.
The Photoattorney blog found some good news in the decision, read here.
For a wildly different view from Kevin Smith at Duke, look here.
A totally different angle at Exclusive Rights blog here.
Read on below:
LatimerVRoaringToyz
1 comments:
Detail from Todd Latimer's Midnight Rider - Full image here.
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
(emphasis supplied).
§ 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
The 11th Circuit basically tossed out the bolded language in a recent decision captioned Latimer v. Roaring Toyz, Inc., 2010 WL 1253090 (11th Cir. April 2, 2010) and radically expanded the doctrines of implied license and constructive delivery.
Here's the scenario, wildly oversimplified:
Artist paints artwork onto motorcycle. Knows it will be used in photography, stream of commerce. Motorcycle company gets no release. Artist is not plaintiff, has nothing to do with the case, but 11th Circuit spends a lot of time on him.
Plaintiff is motorcyle photographer. Takes photos at motorcycle company's request. Orally grants certain publication rights and thinks he owns/reserves the rest. Photographer has granted first publication rights to Two Wheel Tuner mag. Instead of distributing his high quality digital files per his instructions, company distributes them to press who unwittingly publish them, including defendant Hachette's Cycle World.
Motorcycle company who uses photos claims that they were unauthorized derivative works because the photographer didn't have a release from the guy who made the paintings on the motorcycle.
11th Circuit finds that the fact that motorcyle photographer delivered photographs without clear reservation of rights grants an implied license to motorcycle company to do whatever it likes. FURTHER finds that anyone downstream has "constructive delivery" from the photographer and can do whatever they like without getting written permission.
Here is the 11th Circuit's new rule:
"Thus, an implied license will be limited to a specific use only if that limitation is expressly conveyed when the work is delivered"
In other words, if you deliver your photograph to someone and YOU don't write down that they can't do whatever the heck they want with it, you lose your copyright to that person and to anyone they give it to.
This case is really a breathtaking blow to photographers who often deliver their works hoping that a potential client will fall in love and license them. Since the photographer said he knew that Kawasaki "might" use them, the 11th Circuit threw out his affidavit as a "sham".
In other Circuits, one must generally obtain written permission to use a photograph, the implied license doctrine is narrowly construed.
In addition, the 11th Circuit held that the photographer must prove that he gave the motorcycle company a course in copyright law to prevail:
Kawasaki asserts that Latimer did not expressly communicate to Kawasaki any restrictions on the use of the photographs. However, Latimer contends that all of his communications with Kawasaki went through Roaring Toyz and that he granted Kawasaki permission to use the photographs for a specific purpose-a media display at Bike Week. Thus, the question here is whether Latimer delivered a warning adequate to put Kawasaki on notice that certain uses of Latimer's photos would constitute copyright infringement.
Latimer v. Roaring Toyz, Inc., 2010 WL 1253090, 11 (11th Cir. April 2, 2010).
It should be noted that the 11th Circuit purported to give a victory to the photographer, but the burdens of proof that have been spelled out are highly problematic and appear to be inconsistent with the plain language of the Copyright Act and a body of case law that generally puts photographers in the driver's seat when there is an unauthorized publication of their works.
The Photoattorney blog found some good news in the decision, read here.
For a wildly different view from Kevin Smith at Duke, look here.
A totally different angle at Exclusive Rights blog here.
Read on below:
LatimerVRoaringToyz
1 comments:
- I don't read the case as problematic as you do. Or to clarify, I read the case as much more problematic than you do to the extent that I don't think any single pronouncement -- such as your highlighting of the 11th Circuit's take on limiting implied licenses -- means much of anything. How about the many examples of the court used publish and distribute interchangeably (they're two very different concepts)? Or how the Circuit decided without any analysis that the motorcycles were useful articles and were not copyrightable subject matter (that's a hell of a leap)? Or how the court went of the way to address fair use issues it could have just left alone. Never mind the fact that I still don't understand how if we were to consider photos derivative works it will lead to some cataclysmic outcome -- a photo can still be infringing even if it is not derivative. There is nothing redeeming about this opinion. It's so poorly written that I can't imagine any court, even the district courts in the Circuit, will take away any substantive law.
Wednesday, April 14, 2010
How Do I Breathe?
LeAnnRimesWorld — June 29, 2009 — LeAnn's 4th video. LeAnn is the original singer of this song not Trisha Yearwood. (read history below).
Albums: You Light Up My Life: Inspirational Songs & Greatest Hits
Writer: Diane Warren
© 1997 Curb Records, Inc.
History of How Do I Live:
"How Do I Live" is a 1997 song, written by Diane Warren, that was released originally by LeAnn Rimes, and shortly afterward by Trisha Yearwood.
The song was originally intended for release as a single for the 1997 action blockbuster Con Air soundtrack. Warren wrote the song for Rimes to sing. The producers felt that Rimes's version had too much of a pop feeling to it, and requested that she re-record it to fit their standards. She refused, and the producers chose Trisha Yearwood to record the song. Her more country-style version was released on May 27, 1997 and appeared in the film. When Rimes heard of the release, she quickly released her version.
Despite only peaking as high as number seven in the UK Singles Chart, LeAnn Rimes' version of How Do I Live spent thirty-four weeks in the chart. It set a record for staying on the Billboard Hot 100 chart for sixty-nine weeks. The song entered the Top 25 US Country singles chart on June 21, 1997 and was still there in February 2003, a record 291 weeks (five and half years) later.
How Do I Live was covered by F.I.R. (Faye and Real featuring LeAnn Rimes). F.I.R. invited Rimes to record a portion of the song for their third album Flight Tribe in 2006.
The song has also been performed on the hit show American Idol, Vonzell Solomon in Season 4, Paris Bennett in Season 5, and Meosha Denton in Season 2. It was also part of American Idol Season 2 compilation, sung by Carmen Rasmusen.
Rimes' version ranks at #4 on Billboard's All Time Top 100. The single has been certified 3x Platinum by the RIAA for shipments of over 3 million copies in the United States. On the digital front, it routinely shifts more than 1,000 units per week, for a to-date total in excess of 203,000. Category:
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DaniellaMonet I'm watching 9 by Design on Bravo.
DaniellaMonet
Flipping Out re-runs on Bravo never get old. Not even at 2:18am. Wow.
*******************************************************************************
JuliaNunes
Made a poster for the NYC show. http://tiny.cc/vgojg i used to make them all the time in highscool. Imma start that up again
JimCarrey No matter what u sculpt,the ego of the beholders will redesign it to suit themselves.If they can't,the sculptor is labeled offensive! ;^>
RT: Alyssa_Milano This is CRAZY! Do NOT try this at home: http://bit.ly/4mKk23 (via @eGuiders)
7:46 PM Oct 22nd, 2009 from web
jennaonpurpose Agreed! RT @JimCarrey: (^; !sdrowkcab ssa dlrow eht gniweiv er'ew ,tuoba ytliug leef ew sgniht eht rof srehto emalb ot syaw dnif ew nehW
meekakitty Kick-Ass comes out tomorrow! :D FREAKISHLY EXCITED
meekakitty No one will go with me, so i'm going to see the first showing tomorrow on the lonesome! THAT'S HOW I ROLL.
mrskutcher When in NY a Yankees game is a must! http://twitpic.com/1fwqyt
Alyssa_Milano Johnny Depp reads letters from Hunter S. Thompson: http://is.gd/buvLe (via @brainpicker)
disasterpastor Hunter S. Thompson on Letterman, 11/25/88 http://www.youtube.com/watch?v=OfoLKB0VZqg
disasterpastor Golden Girls and President Bush (1988) http://www.youtube.com/watch?v=ej7TMtXMP2o
disasterpastor 1988 CBS Evening News with Dan Rather Open (Full) http://www.youtube.com/watch?v=s59TMT_LHUg&feature=related
ebertchicago Essential "Kick-Ass" defense: "You don't get it, 'cause you're not me."
ebertchicago A teacher pal writes: "Today, it's cool to see how loud your pal screams when you twist his nipples or kick him in the nuts."
disasterpastor Lloyd Bentsen puts down Dan Quayle http://www.youtube.com/watch?v=O-7gpgXNWYI&feature=related
disasterpastor I saw this the 1st time around. Top Ten Dan Quayle Complaints About Clinton http://www.youtube.com/watch?v=z5O9cCAmL0w&feature=related
ebertchicago Update: Every single Chicago critic listed on the Tomatometer disliked Kick-Ass. Chicago, the city of discernment.
ebertchicago Off-topic sign at today's Tea Party rally in Chicago. http://twitpic.com/1fx67b
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4-19-2010
yelyahwilliams digital digital get-down
Saturday, April 10, 2010
Music Grafting
Right click on video & select Watch on YouTube (or just press play on 2nd video if under 18 right here)
Photo, click for larger size. - Pop17 at '80's night (Kim Wilde 1987).
Rebekah & Sarah Austin (Pop17) with Tia Carrere (4-28-10)
Welcome to Pop17 Live! Apr 29 2010 at 9:09AM PDT
Wiki Tia Carrere
Pop17.com
Greece was artificially saved today - Hobbes (satire)
Written by Hobbes for FDIC Friday (Banks get shuttered on Fridays)
Wow, slow night. Given the never ending rumors of an IMF-Greece save, am I allowed to wonder what future Friday press releases from the IMF might look like? The FDIC press release would do well as a template:
FOR IMMEDIATE RELEASE
April 9, 2010
Contact: Money Forall
Office Phone: (555) WEP-RINT
Email: forgettakingresponsibilityforyouractions@imf.org
Greece was artificially saved today by the Office of the Creator of the Currency, which appointed the Imaginary Monetary Fund (IMF) as savior. To protect the asshat political and financial elites that ran the world into the ground, the IMF entered into a series of agreements with several other insolvent nations, to magically provide financing and a capital infusion to Greece.
All branches of the Greek government will reopen on Monday with enough capital to last them, oh, maybe another few months. Taxpayers of other nations will automatically, and in most cases unwillingly, become benefactors to Greek public employees. Citizens will continue to receive funding from the IMF, so there is no need for public employees, or union members to change their entitlement beliefs, attitudes, or to learn anything about how the effin’ world financial system is hosed. Understanding and accepting that severe austerity measures must be taken is of course, not recommended. Heck, the Imaginary Monetary Fund has money for everyone. Citizens and union members should continue to use their existing miniscule IQ to demand the status quo until they receive notice from the Bank of Two By Six Up Side the Head that the money and lifestyle to which they are accustomed to never truly existed.
This evening and over the weekend, citizens should dance, drink and be merry. Elected officials all over the world have got this. Checks drawn on banks will continue to be processed. Loan customers can feel free to stop making any and all payments. The banks don’t really need the money as they make up numbers for accounting purposes anyway.
As of March 31, 2010, the IMF had a big-ass list of ‘Troubled Entities’. We had to change the name from Countries to Entities, as we’re forward thinking and want to make sure California, New York and others don’t do anything rash, like get their budgets under control. Now that we’ve “saved” Greece, we’re wondering how long before at least the next 4 Euro countries on the ‘Troubled Entities’ list give us a call. The list is confidential, as we don’t want to cause panic anywhere. That might get some people PIISed at us.
Oh, and of course Greece is going right back into the Troubled Entity list, we’re just not sure where in the pecking order to slot them. Cause none of the bailouts attempted to date have actually fixed any problems, just delayed them.
The IMF and other insolvent countries entered into a loss-share transaction on all the money we just gave to Greece. Every freakin’ country in the world will share in the losses caused by all this stupidity. The loss-share transaction is projected to maximize pain everywhere because nobody is willing to take their required medicine NOW.
The IMF estimates that the cost to the Delusional, Imaginary and Fraudulent Fund (DIFF) will be $0 million. Hey, since we’re pretending that the money we just gave to Greece actually exists, we can also pretend that the cost is nothing. The IMF’s donation to Greece was the "least politically painful" resolution compared to all alternatives. Never mind telling us it didn’t really resolve anything. Greece is the 1st IMF-sponsored country to almost fail this year, but we doubt it will be the last.
Wow, slow night. Given the never ending rumors of an IMF-Greece save, am I allowed to wonder what future Friday press releases from the IMF might look like? The FDIC press release would do well as a template:
FOR IMMEDIATE RELEASE
April 9, 2010
Contact: Money Forall
Office Phone: (555) WEP-RINT
Email: forgettakingresponsibilityforyouractions@imf.org
Greece was artificially saved today by the Office of the Creator of the Currency, which appointed the Imaginary Monetary Fund (IMF) as savior. To protect the asshat political and financial elites that ran the world into the ground, the IMF entered into a series of agreements with several other insolvent nations, to magically provide financing and a capital infusion to Greece.
All branches of the Greek government will reopen on Monday with enough capital to last them, oh, maybe another few months. Taxpayers of other nations will automatically, and in most cases unwillingly, become benefactors to Greek public employees. Citizens will continue to receive funding from the IMF, so there is no need for public employees, or union members to change their entitlement beliefs, attitudes, or to learn anything about how the effin’ world financial system is hosed. Understanding and accepting that severe austerity measures must be taken is of course, not recommended. Heck, the Imaginary Monetary Fund has money for everyone. Citizens and union members should continue to use their existing miniscule IQ to demand the status quo until they receive notice from the Bank of Two By Six Up Side the Head that the money and lifestyle to which they are accustomed to never truly existed.
This evening and over the weekend, citizens should dance, drink and be merry. Elected officials all over the world have got this. Checks drawn on banks will continue to be processed. Loan customers can feel free to stop making any and all payments. The banks don’t really need the money as they make up numbers for accounting purposes anyway.
As of March 31, 2010, the IMF had a big-ass list of ‘Troubled Entities’. We had to change the name from Countries to Entities, as we’re forward thinking and want to make sure California, New York and others don’t do anything rash, like get their budgets under control. Now that we’ve “saved” Greece, we’re wondering how long before at least the next 4 Euro countries on the ‘Troubled Entities’ list give us a call. The list is confidential, as we don’t want to cause panic anywhere. That might get some people PIISed at us.
Oh, and of course Greece is going right back into the Troubled Entity list, we’re just not sure where in the pecking order to slot them. Cause none of the bailouts attempted to date have actually fixed any problems, just delayed them.
The IMF and other insolvent countries entered into a loss-share transaction on all the money we just gave to Greece. Every freakin’ country in the world will share in the losses caused by all this stupidity. The loss-share transaction is projected to maximize pain everywhere because nobody is willing to take their required medicine NOW.
The IMF estimates that the cost to the Delusional, Imaginary and Fraudulent Fund (DIFF) will be $0 million. Hey, since we’re pretending that the money we just gave to Greece actually exists, we can also pretend that the cost is nothing. The IMF’s donation to Greece was the "least politically painful" resolution compared to all alternatives. Never mind telling us it didn’t really resolve anything. Greece is the 1st IMF-sponsored country to almost fail this year, but we doubt it will be the last.
Ganja Girls
Click on pic to make larger. Watch video on YouTube.
Photos taken by me on Sept. 3rd, 2008, taken 26 seconds apart. Click to enlarge. While in large picture mode, close one eye and notice which way and how far the moon shifted from side to side, repeat one eye viewing with other eye.
Meteor lights up the sky! Elma, Iowa
Photos taken by me on Sept. 3rd, 2008, taken 26 seconds apart. Click to enlarge. While in large picture mode, close one eye and notice which way and how far the moon shifted from side to side, repeat one eye viewing with other eye.
Meteor lights up the sky! Elma, Iowa
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