German Federal Courts: Where IP Optimism Goes to Die

Remember what I said about Germany's highest Court recognizing an untrammeled right to sample a small portion of an existing musical recording? 

Because that's how hip-hop works.

Remember how excited I was when Germany's Constitutional Court - back in 2016 - wrote so eloquently (and logically) about how a 2 second long drum sequence from Kraftwerk’s 1977 "Metall auf Metall" (Metal on Metal) could be looped under Sabrina Setlur’s 1997 "Nur Mir" (Only Me) without requiring endless years of litigation - or paying hundreds of thousands of Euro's to lawyers and record companies?

Was I wrong to hope, back then, that the evolving American legal decisions - written by enlightened Judges, who favor a transformative fair use for economically inconsequential excerpts - had found a sympathetic ear in Germany's highest Court?

Well. Yes. And no.

While the highest Court in Germany clearly got how sampling could work in the 21st century, they also referred the matter back down to Germany’s Federal Court (mired in the 19th century?) to be reassessed.

And it's in those dreary German Federal Courts where optimism (for example, about copyright law evolving to suit the times) apparently goes to die. 

It isn't over yet. 

But, the latest news is grim.

In the now never-ending case involving that 41-year-old 2-second rhythm sample from Kraftwerk, Advocate General Szpunar writing for the German Federal Court ruled on December 12th, 2018 that:

"The aim of sampling is not to enter into dialogue with, be used for comparative purposes, or pay tribute to the works used. Sampling is the act of taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts. Moreover, those extracts are often modified and mixed in such a way that all original integrity is lost. It is not therefore a form of interaction but rather a form of appropriation... I do not believe that it is customary in hip hop or rap culture to indicate the sources of the samples that make up the works belonging to those genres of music. In any event, it is not apparent from the order for reference that the appellants tried to indicate the source of the extract used in the song Nur mir or the names of the respondents... I therefore propose that [an exception similar to US notions of fair use provided for in Germany's Article 5(3)(d) of Directive 2001/29]... does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram."

In short?

You still can't sample in Germany without getting permission.

Even after the highest Court in Germany wrote in 2016 that Sabrina Setlur’s sampling of Kraftwerk's then 20 year old song had a “negligible” impact on Kraftwerk and therefore “artistic freedom overrides the interest of the owner of the copyright.” 

Address your outraged complaints to Advocate General Szpunar in the German Federal Court. (That's his picture above. And no. I didn't get permission to use the picture from CommRisk. Sue me.)

Does Copyright Law Protect Pornography?

Let's start at the conclusion.

Yes. In the US, copyright law protects even pornography.

It's settled law.

Smut is no different under copyright law than the finest literature or the best music. 

So? Even the smuttiest smut can't be copied without the author's permission.

But - in his anger that a pornographer was trying to use his court to collect names of alleged downloaders to extort them -  a 73 year old judge may have recently gone too far - suggesting that porn's protection under copyright law wasn't settled law.

In (justly) swatting down the copyright trolls, it sure looks as if the Judge may have (unintentionally) undermined copyright law. 

Why does it matter? If the porn-producer-copyright-trolls lost?

It's the unintended consequences that have me worried. 

I'm worried that one overzealous (and kinda creepy) Judge set a precedent that others with censorious intentions might soon try to use? 

(Why do I say the Judge comes across as kinda creepy? First he seems to claim extensive knowledge of pornography - calling Strike 3's content not "run-of-the-mill porn". But then? He shifts to a weird moral high ground - calling their stuff "aberrantly salacious". Creepy.) 

Back to my main point? 

I thinks it's a mistake to build weapons to attack the trolls, if those same weapons can easily be turned around and used to attack artists who print or film or paint provocative or salacious stuff.

Here are the key facts: 

In his November 2018 ruling, Judge Royce C. Lamberth, of the DC Circuit, took it upon himself to quash a federal copyright infringement lawsuit - even before the plaintiff had identified who they wanted to sue.

The case had started because a pornography producer, Strike 3 LLC, wanted to subpoena an internet company (an "ISP") to get the names and addresses of customers who they alleged had downloaded one or more of Strike 3's films illegally.

But Judge Lamberth wasn't inclined to humor the pornographers. And he made his reasons for dismissing their motion to require discovery - to identify the alleged illegal downloaders - very clear:

"Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of

extortion It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown This Court declines."

My guess?

Judge Lamberth had heard about other porn producers (like the sleazy former lawyers behind the Prenda Group) whose business model was to seek discovery from ISPs for the names of thousands of individuals, only to threaten these thousands of internet users with exposure as porn fans and expensive copyright lawsuits unless they quickly settled.

OK.

I'm fervently against copyright trolls. They abuse the legal system to extort money from folks who might (or might not?) have downloaded porn. 

But in his effort to get Strike 3 out of his batter's box, the Judge may have thrown a bit too hard and fast inside. 

It's one thing to remind the copyright trolls that they need to respect his position and the courts. So? The Judge would be well within his rights to find that the plaintiffs could not use discovery simply to get names of people to shake them down - with no intention of actually following through in the courts.

But, the Judge hurled dangerous "chin music" (in baseball, "chin music" means a pitch that is thrown dangerously close to the batter's face) when he wrote in a footnote (on p. 7) that “it is unsettled in many Circuits - including this one - whether pornography is in fact entitled to protection against copyright infringement.”  

In fact? 

The Judge is wrong.

The copyright protection afforded to pornography is settled law. 

Everywhere in the US.

For a recent example, here's the relevant language in a decision from a 2012 7th Circuit Court of Appeals ruling:

“[Plainitff] specializes in the production and distribution of videos of black men engaged in homosexual acts. Although some people would disapprove of such a service there is no suggestion that it is illegal; and anyway the prevailing view is that even illegality is not a bar to copyrightability.” 

Tips For Monitoring Your Progress Quiz-to-Quiz

New Technologies Will Require New Thinking in US Copyright Law: What Rights Are Implicated By Making Available Online?

If a website offers a link to a copyright work (without the author's permission), is that a form of copyright infringement? Is it a copying? Or a distribution?

What if a company offers individual subscribers their own tiny remote antennae - a small device in Brooklyn that picks up all the free-to-view broadcast TV signals in NYC - recording each subscriber's favorite broadcast TV shows and then making just those broadcast TV shows available to that unique subscriber - a form of time-shifting where a user who is traveling can watch local TV shows after they are broadcast from her discrete antenna and digital recorder? Is that Brooklyn- based company or the subscriber guilty of copyright infringement?

Here's a link to some fascinating 2016 guidance from the US copyright office. 

Is Intellectual Property Really Property?

If you watched the video of Tina Turner (above, recorded in Sopot, Poland) or you're reading this post, your digital device is probably rendering some type of copy.

Tina Turner first recorded her vocal track for the original hit record on March 7th, 1966 - 51 years ago. And this video of her singing live was recorded August 15th, 2000.  And I wrote these words on Wed. March 8, 2017 ("my" words - in this particular order to express some ideas).

Assuming, for sake of argument, that my ideas are original and have some value (not as much as "River Deep, Mountain High", but some nominal value) can I say I own these words?

If I don't own the words - if the actual words aren't my property, but my particular arrangement of them to express my thoughts can be considered a form of property - can I prevent people from copying them?

What exactly makes any claim of "rights" over intellectual property (e.g., a song, a performance or a blogpost) legal?

Is my claim over "my" words ethical?

I want you to share what I write. But what if I didn't?

Is it right that criminal copyright laws (first crafted during a different time, before Tina Turner and I were born, when people used different technologies and engaged in different cultural practices) still apply?

In this era of abundant and ubiquitous information, is it time to re-evaluate our approach to Intellectual Property?

What is the philosophical foundation for saying someone "owns" a work of expression (like a song, a blogpost, a movie, novel, sculpture, ballet, or poem).

Follow this link to a fascinating article by David Faraci entitled "Do Property Rights Presuppose Scarcity?". 

Mash-Up of the Day: Will He Survive?

The Republican candidate for the highest office in the US (give it 30 seconds and listen for the music)...

And the original...

NOW WTF 25 - fans being fans? participatory culture? cultural appropriation? copyright infringement? protected parody?

thanks to Emily Chang for the link...

German Court Takes Expansive View of Hip Hop Fair Use: Permitting Unpermissioned Sampling of a Kraftwerk Drum Loop

What matters more, the interests of copyright holders in profiting from their work (even short samples of musical performances) or the interests of hip hop creators - who often use music samples to create new work?

When it came to a drum sample lifted from a 1977 Kraftwerk album, Germany's highest court has come down heavily on the side of 21st century hip hop artists, ruling that "[a]rtistic freedom overrides the interest of the owner of the copyright."

As reported in a June 1, 2016 post to themusic.com, "[a] long-running copyright case involving German electronic outfit Kraftwerk has been shut down by Germany's highest court this week, as the court handed down the decision that sampling was a "style-defining element" of hip hop and should therefore be permitted."

"The German Constitutional Court acknowledged "the essential place that the practice of sampling has in the hip-hop genre" (according to Agence Francais Presse) and found that if copyright owners were to impose royalties on composers, they can either ask any amount they desire or plainly reject usage. This would be restricting the creative process; composers should be able to create without financial risks or restrictions, the court said."

Did Fox Take (Without Permission) a Video Game Clip, Then Claim No One Else Could View the Clip?

"Just when you think you’ve seen every ridiculous example of a bogus DMCA-style takedown, another steps up to take the crown."

Today's post illustrates how the law of copyright can trip up even large corporations. Like Rupert Murdoch's Fox.

Rupert Murdoch is a staunch opponent of "fair use" - arguing that even the smallest unpermissioned use of his network's content should be illegal. But, of course, Fox has a history of using content that belongs to someone else without permission.

Which brings us to the May 2016 moment when Fox took a gamer's YouTube video - made while the gamer was playing a 1980s arcade game called Double Dribble. Fox then used the gameplay video (without permission?) in a TV episode. Then, and this is the part where the DMCA comes in, Fox tried (momentarily, as it turns out) to claim the underlying clip as their own...

Let's start at the beginning...

How was Fox able to have someone else's clip removed from YouTube? 

The answer requires an understanding of a 17 year old revision to US copyright law known as the DMCA... 

DMCA stands for Digital Millenium Copyright Act. (And, if you attended the class we had this week on Copyright and International Trade Agreements, you might also be interested to know that the DMCA is a 1998 US law that implements obligations agreed to under the World Intellectual Property Organization in 1996.)

In 1998, the DMCA imposed new penalties for circumventing copy protection and increased the penalties for copyright infringers. But perhaps the biggest innovation under the DMCA was that internet service providers and other intermediaries could be exempt from liability - when their services were used without their knowledge to infringe copyright - as long as certain steps were followed. 

This limitation of liability under the DMCA is known as the "safe harbor" - since an area where there is no liability can be considered a "safe harbor."

What specific steps entitle an internet service provider to the DMCA's safe harbor? 

As most students of copyright law know, someone who is not directly infringing copyright, but who contributes to the infringing acts of others, has historically been liable under US law for what has been known as "contributory liability."

Well, in the 1990s it became apparent that online service providers (“OSPs” or "ISPs" meaning internet service providers) might be dragged into court as contributory infringers simply for unwittingly hosting infringing material (e.g., many sites allow users to upload content, and sometimes those uploads include infringing material).

So back in October of 1998, almost 7 years before the domain name YouTube was even activated (in Feb. 2005), the US law was revised to protect providers "of online services or network access, or the operator of facilities therefor” 17 USC §512(k)(1)(B). Specifically, the DMCA created a safe harbor for online service providers against copyright infringement liability.  

How exactly does the DMCA safe harbor work? 

If companies that allow user uploads (like YouTube) follow the DMCA rules - i.e., promptly blocking access to alleged infringing material or removing such material from their systems when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent - the OSPs will not be liable for copyright infringement.

But note: When an OSP receives a takedown notice from a copyright holder or their agent, under the DMCA the OSP is required to promptly remove or disable access to the accused material - whether the material is infringing or not. 

What if the uploader argues fair use? 

Or what if the entity claiming to be the copyright holder isn't really the owner?

According to a May 20th, 2016 report in TorrentFreak, that's exactly what happened last week when Fox filed a complaint under the DMCA.  

Fox sent YouTube a takedown notice - asserting that a 2009 clip was illegally copied from their 2016 show - when in fact Fox had copied the original clip -  and YouTube followed the DMCA and removed the 2009 clip - illustrating how the takedown notice system can be misused to create ridiculous results...

The facts are not disputed. In a May 14, 2016 episode of Family Guy on Fox, Peter annoyingly exploited a glitch in a real world 1986 game from Konami called Double Dribble. 

After the episode aired, Fox sent YouTube a letter, instructing that OSP to takedown a video that had the gameplay in it.

That's right.

Fox was asserting they owned the video made and uploaded by a Double Dribble player and fan back in 2009.

Here's the problem: Fox doesn't own the copyright to the Double Dribble game (the characters, artwork, music, sound effects, etc.) and it doesn't own anything added to the Double Dribble video clip by the user who recorded and uploaded his game play.

Never did.

Those rights belong to the game company and the player.

In fact, Fox apparently obtained the clip that they used in their Family Guy episode directly "from YouTube where it had been sitting since it was first uploaded in 2009." Arguably infringing the copyrights of others.

How did the takedown notice happen if Fox doesn't own the gameplay clip?

Apparently Fox uses an automated system that compares everything on YouTube to what Fox has broadcast - and the system was unaware that Fox had copied the original Double Dribble clip (without permission?). 

In other words, Fox (or at least Fox's automated system?) simply behaves as if everything broadcast on Fox belongs to Fox. So Fox (or their automated system?) was under the impression that Fox owned the gameplay clip just because it had been incorporated into a Fox television show.

And the takedown notice that Fox sent to YouTube?

Not supported by the facts.

But a delay in responding to takedown letters could deny YouTube the safe harbor. So YouTube dutifully took down the original gameplay clip:

But now (after a few days and some public shaming of Fox) the original clip has been restored on YouTube:



Why did Fox relent so quickly - apparently instructing YouTube to disregard their takedown letter?

The DMCA provides for damages and attorney’s fees for “any person who knowingly materially misrepresents” the facts in a takedown notice. 

In other words, Fox claimed ownership of the clip even though they didn't own the clip - and their mistaken takedown letter opened them up to damages and claims for the attorney fees incurred by the party who did own the clip...

Dealmaking Whoopsie

The package?

Sure to attract a great deal of attention.

Big stars (Russell Crowe and James Franco)!

Produced by Hollywood titans (Scott Rudin and Cassian Elwes)!

Based on a book that appeared on Time Magazine's list of the 100 Best English-language Novels from 1923 to 2005 (Cormac McCarthy’s Blood Meridian)!

A launch at the 2016 Cannes Film Festival!

What could go wrong?

Read this!

Because Copyright Protection is NOT Available for Movie Titles - Here's How the MPAA Title Registry Works

In a document known as Circular 34 the US Copyright Office explains that movie titles, catchphrases (i.e., a well-known sentence or phrase, typically one that is associated with a particular famous person), names of people, products, and services are NOT subject to copyright.

Why aren't these short forms of expression (in particular, this post is concerned with movie titles) copyrightable?

The short answer?

Copyright protects original works of authorship. And under copyright law as it exists today, short phrases, names and titles are not considered to be original works of authorship.  

Why not? 

Where the degree of creativity is minimal, the US system is reluctant to allocate court time and government resources to protecting plaintiffs under copyright law. 

These requirements - of originality and authorship - also explain why judges will toss out copyright cases where a mere listing of ingredients or facts (e.g., a recipe or a telephone directory white pages) are lacking in creativity.

There is a grey area (isn't there always?), where a minimum amount of original expression might exist and copyright protection could attach to a very short work (e.g., a music sample). But, in general, movie titles and short phrases are not protected by copyright law. 

But note: Short movie titles and short phrases can sometimes be protected under trademark law. 

In general, trademark protects names, words, phrases and symbols which identify the source of goods or services in commerce. 

Here's an example of a familiar phrase and symbol that serve as trademarks - where the brand catchphrase and symbol identify the source of commercial products and services (note the registered trademark symbol (®) that indicates the marks have been registered with a national trademark office).

But not all titles, logos and phrases can be trademarked. 

Understanding the rationale behind trademark (as opposed to copyright) may help to explain why certain titles can obtain trademark protection - and others cannot. Unlike copyrights that deal with the marketplace of expressive ideas, trademarks deal with the marketplace of goods and services.

Basically, protecting a title or phrase under trademark requires that the title, logo or phrase is a brand - in other words, an identifier used on goods or services offered for sale in the marketplace. 

Here's what that means: Trademarks exist to protect consumers from being misled. Because trademark law exists to protect consumers from confusion about the source of a product or service - a name like Star Wars can be treated like a brand - insuring that your Boba Fett toy comes from a licensed manufacturer. 

Note: Even though trademarks serve the public interest by protecting consumers, trademarks also benefit producers. For example? George Lucas was able to  sell the Star Wars brand to Disney in 2012 because "Star Wars" signifies a source of goods in the minds of the public. In theory, legally licensed Star Wars toys, etc. should be of a certain quality - thereby protecting the consumer and the owner of the Star Wars brand from unlicensed works. (Although there are some unlicensed Star Wars toys that are simply amazing.) 

So, to recap, while it is not possible to protect a movie title under copyright law, it is possible to register certain titles of films or short phrases as trademarks - but only when those film titles or short phrases have become a brand.

In the US, registration of movie titles as trademarks with the United States Patent and Trademark Office generally requires that the work designated by the title is not a single film, television show, or book. The one possible exception: When the single movie's title has had such an impact that the title has acquired what lawyers call secondary meaning. And "[t]he crux of the secondary meaning doctrine is that the mark comes to identify not only the goods but the source of those goods. To establish secondary meaning, it must be shown that the primary significance of the term in the minds of the consuming public is not the product but the producer."

Ok. 

One more question. 

Since copyright law doesn't cover movie titles, and trademark law may not protect a movie title (e.g., no trademark unless your movie title functions like a brand), is it possible to protect a movie title in another way?

Yes!

The Motion Picture Association of America or MPAA (a not-for-profit private lobbying group, funded in large part by the 6 major studios) offers a non-governmental system - specific to the motion picture industry - for registering movie titles.

This voluntary registration for titles of movies is intended to prevent public confusion over films with similar titles. And the MPAA system does not rely copyright or trademark protection. Instead, it operates under contract law. 

Here's how the MPAA title registry works:

In order to register titles, filmmakers must subscribe to the Bureau’s registry. There are currently almost 400 subscribers, including all of the major motion picture studios. 

Subscribers to the MPAA title registry are bound by the MPAA's rules, which set out how to register titles and - most importantly - how to handle disputes between subscribers about previously registered movie titles.

Note: The MPAA system of title registration has nothing to do with copyright or trademark law. The title rules of the MPAA are enforced by contract (when you sign up, you agree to follow the rules, and if you don't follow the agreement, you can be sued for breach of contract). 

Is there a recent example of the MPAA’s Title Registration Bureau leaping into action? 

Yes. The MPAA system of title registration explains why in July of 2013, the MPAA’s Title Registration Bureau ruled that The Weinstein Company (TWC) could not use the title "The Butler" for their Lee Daniels film. "The Butler' was the name of a preexisting 1916 short film that had become part of the Warner Brothers library. So instead TWC called their film “Lee Daniels’ The Butler”:

The Platonic Ideal of a Cheerleader's Uniform, Adult Diapers, and Intellectual Property Law

Fans of fetish wear might want to tune in when the Supreme Court takes up two cases that were added to the docket on May 2, 2016.

These two cases will likely matter most to copyright lawyers and pervs. 

(There is probably a Venn diagram, illustrating that sexual perverts who are also lawyers are the core audience for this post, but I don't want to think about that any longer than I have to... instead...)

Here are the two cheerleader uniforms whose similarities triggered the first case:

In that case, Star Athletica, LLC v. Varsity Brands, Inc., the court will consider cheerleader uniforms (and when a feature of a useful article is protectable under section 101 of the Copyright Act - specifically where to draw the line when it comes to copyright interests in "works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned"). 

In the second new case, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, the court will take up adult diapers (and when delays in filing an intellectual property infringement lawsuit might invoke the legal defense of laches, protecting a defendant when a plaintiff has been unreasonably slow in asserting a claim). 

The diaper case can be seen as a follow-up to a copyright ruling from 2014 in which the Supreme Court said an heiress - to rights in a 1963 screenplay - didn’t wait too long to sue MGM on infringement claims stemming from Raging Bull.

You can look up court cases about cheerleader uniforms on your own... (although the District Court's invocation of Plato in its 2014 Varsity Brands opinion is in my view a noteworthy piece of legal writing). And note: There are movie industry merchandising implications as to whether a designer or studio can claim a copyright interest in costumes that are also useful articles - like a helmet worn by a stormtrooper.

How Neglected Independent Films (Released Under a Broken Theatrical Model) Inspired Beyoncé's 'Lemonade'

Reading the reviews in Indiewire and the New York Times of Beyoncé's 'Lemonade' that premiered on HBO on Saturday April 23rd, 2016, it's possible to overlook the 65 minute film's roots in independent filmmaking.

In an April 26th, 2016 piece for The New Yorker, Richard Brody explores how the American system of publicizing independently-financed films has failed to support distinctive filmmakers - like Julie Dash - whose 1991 film "Daughters of the the Dust" was one of the inspirations for Beyoncé's 'Lemonade', a visual-album that is itself a fascinating piece of filmmaking. 

As Richard Brody notes: "Part of the blame lies with critics—predominantly white critics—who paid no attention [to pioneering African-American woman Julie Dash, and indie films about the African-American experience like her Daughters of the Dust]. But part of the blame lies with a system of tacit complicity between critics and the industry that poses obstacles to the recognition of independent films."

Questions of real-life infidelity in Beyoncé's marriage seemed to dominate new reports - rather than the debt owed to indie filmmakers - when the music and the film of 'Lemonade' were released via the online streaming service Tidal (a company owned by Beyoncé's husband, Shawn "Jay Z" Carter) during the HBO premiere.

Initial reports suggested that after the HBO screening the only place to get 'Lemonade' would be on the subscription-based Tidal. But, as of April 25, 'Lemonade's' music and the film were also for sale on iTunes and Amazon. Amazon even has a preorder option available for a CD/DVD set, which will apparently include the "corresponding short film." 

The platforms that are offering the film of 'Lemonade' are in themselves a fascinating story for anyone interested in monetization of non-studio content. 

As is the enthusiastic response online - with users marketing 'Lemonade' through copious tweets:

Consider how in the past indie films struggled to get a one-week theatrical run in NY or LA - to merit a review in the leading papers and consideration for year-end awards.

To get a sense of how much Beyoncé might owe to prior filmmakers, take a look at the video below - put together by video essayist Nelson Carvajal - with excerpts from 'Lemonade' on the left set against excerpts from David Lynch's Mulholland Drive and Twin Peaks,Terence Malick's The Tree of Life, Pipilotti Rist's video installation Ever Is Over All, Cameron Jamie's dance short Massage The History, Jonas Mekas' found footage and Terence Nance's An Oversimplification Of Her Beauty.

VIDEO ESSAY: Film Fidelity: Beyoncé's "Lemonade" from Nelson Carvajal on Vimeo.

Currently, there is still no way to stream the film of 'Lemonade' online without a Tidal subscription. And there have been no plans announced for a theatrical release...

UPDATE May 1, 2016: The windowed release (exclusive to TIDAL for the first two days starting on April 23rd, then on iTunes and Amazon on April 25th) has apparently encouraged fans to sign up for TIDAL. (TIDAL may have also been the beneficiary this week of Prince's untimely death, as TIDAL is the only legal service offering access to his library.) After the HBO premiere and the release of Beyoncé's new music and film exclusively on TIDAL, TIDAL which had recently been struggling to attract new users, became the most popular music app on the iOS app store – jumping up 134 places on the chart of the most-downloaded free iOS apps in the US on April 23rd and then another 14 places on April 24th - finishing above both Pandora and Spotify (Apple Music is a native app and therefore isn’t counted). TIDAL is free to download - but there is a US$9.99 per month subscription charge that kicks in after the free trial (US$19.99 for lossless, high-resolution audio). Unlike Spotify, YouTube, and SoundCloud - which have unpaid ad-supported tiers, TIDAL requires a paid subscription. As reported by Tim Ingham in musicbusinessworldwide.com: "As a result of Lemonade, TIDAL has enjoyed many more sign-ups, much higher brand awareness, a sustained run at No.1 on the US app chart and an increasingly solid subscriber income. When TIDAL gets sold – and I for one can’t see Jay Z sticking around too long with what must be a loss-making entity – Beyoncé the shareholder [with a rumored 3% ownership interest in her husband's music streaming service] will collect her winnings."

UPDATE: June 9, 2016: A lawsuit filed in NY on June 8th, 2016 is accusing Beyoncé of copyright infringement, claiming that the trailer for Lemonade includes unpermissioned copying of a short film entitled Palinoia. The plaintiff, Matthew Fulks, is an independent filmmaker. He alleges that - while soliciting work as a music video director -  links to his original film Palinoia were sent to people on Beyoncé's team at Columbia Recording, including Bryan Younce. According to a June 8, 2016 report in the Hollywood Reporter, Younce sent Fulks "a note acknowledging that he had received his "info" with an invitation to submit a treatment for consideration by Columbia." Five months later, Lemonade went into production. Fulks claims that the trailer for Lemonade is a derivative work that "misappropriates the visual content, audio content (sound effects, dialogue, audio timing), mood, setting, theme, pace, and total content and feel" of Palinoia. Here are the two videos at issue, first the one by Fulks and then Beyoncé's trailer. What do you think? Did Beyoncé's team infringe?

Copyright, Optical Illusions and the Penrose Triangle

The Penrose Triangle is named after mathematician Roger Penrose who - as a student - saw an exhibition of M. C. Escher’s work in the 1950s and began working on "impossible figures" of his own. One of the objects that Roger Penrose drew was a triangle - a drawing that looks like a real, solid three-dimensional object, but isn't.

Fun fact: Together with his father, a physicist and mathematician, Roger Penrose went on to design an image of a staircase that simultaneously goes up and down - known as Penrose stairs.

After the Penrose's staircase image was made public, M. C. Escher was apparently inspired to produce his own famous "Ascending and Descending" staircase lithograph (first printed March 1960).

The visual conundrum of the Penrose Triangle isn’t the only brain-teaser raised by the triangle optical illusion. Here's how copyright law (specifically the DMCA takedown provisions) became tangled up with Mr. Penrose's Triangle back in 2011.

In early 2011, Ullrich Schwanitz - a Netherlands-based designer - designed a 3 dimensional object based on the Penrose Triangle:

In mid-Feb. 2011, Mr. Schwanitz posted copies of the object he had figured out how to print in 3 dimensions for sale on shapeways.com (a site where people who create unique objects with 3D printers sell those objects). He was asking US $69.95 per physical object - which he would 3D print and then mail to buyers. Note: Mr. Schwanitz was NOT initially sharing his design file with users of the site (some shapeways.com sellers share design files - but many just want to sell the objects they print based on their designs).

Mr. Schwanitz simply offered copies of the object for sale - and (to drum up attention?) he released a video of the shape and (unwisely?) challenged others to see how it might have been done.

Well.. another avid 3D modeler, Artur Tchoukanov, figured it out.

Mr. Tchoukanov designed his own 3D shape that accomplished the same effect. And he uploaded his shape's specifications to Thingiverse.com, a "design community for discovering, making, and sharing 3D printable things," where designers typically offer their 3D designs for others to use without charge.

Mr. Schwanitz was not happy with Mr. Tchoukanov and Thingiverse.

And here’s where the story takes a turn that should be of special interest to anyone thinking about the implications of designing using new technologies...

Mr. Schwanitz sent Thingiverse a DMCA notice (i.e., Thingiverse could be a party in a copyright lawsuit against Mr. Tchoukanov - unless Thingiverse took the shape down immediately).

Hmmm…

There was no claim that Mr. Tchoukanov had copied Mr. Schawnitz’s computer code. Instead, Mr. Tchoukanov's original code simply created objects that were very similar to the one’s Mr. Schwanitz was selling.

Was Mr. Schwanitz right?

What are the legalities here?

(After there was much outcry online, Mr. Schwanitz dropped his complaint against Thingiverse and Mr. Tchoukanov's work. And Mr. Schwanitz's triangles are no longer for sale.)

To take a very extreme position, I guess you could argue that an optical illusion (like the one known as the Penrose Triangle) presents a real problem for copyright law (which is how Mr. Schwanitz initially chose to remedy his feelings of aggrievement). 

While copyright can protect original expression, how can the law grant someone a copyright in expression based on a single mind-bending illusion? Couldn’t such a copyright also potentially grant control over the idea of the illusion itself? In other words, most optical illusions are essentially the expression of one idea: An idea that can be expressed in a very limited number of ways. And because the idea behind most optical illusions raises thorny issues of authorship and originality - there is an argument to be made that expression (without other evidence of original creativity) of an optical illusion might not be copyrightable. 

In theory, copyright should not give an author control over his or her expression if that interest would prevent others from exploring their own expression of a simple universal idea. 

Remember: Copyright doesn’t protect ideas. 

And, arguably, because idea and expression are so closely linked in many optical illusions, a monopoly over the simple expression of an optical illusion could also grant a unpermissible monopoly over the idea.

But what about unique expressions? Like a unique object based on an optical illusion? Aren't they protectable by copyright?

Is it possible that Mr. Schwanitz’s design is indeed creative, and deserving of a copyright? And that Mr. Tchoukanov’s work does not violate that copyright? 

After all, Mr. Tchoukanov’s work is not strictly speaking a "copy" of the Schwanitz design. It wasn't created by copying the file. Instead, Mr. Tchoukanov’s work is arguably an interpretation of an underlying public domain work. Yes. Mr. Tchoukanov was inspired by Schwanitz's design. But the optical illusion they both are working with is almost certainly in the public domain.

This one never went to trial. So we don't know what a court would have done with the arguments on all sides. 

Is it a stretch to say that the legal and ethical problems here remind me of the experience of looking at a Penrose Triangle? The merits change and my sympathies shift depending on how I look at it.

What do you think?