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SiriusXM, Facebook, Fox, Zorro, orphan works – the week in IP



Michael Loney


The Turtles' challenge of a SiriusXM settlement, Facebook’s video platform, the cancellation of a Zorro trade mark, Fox getting into the beer business, a scary airplane seating patent application, and the US Copyright Office’s report on orphan works were in the IP headlines in the past week

Turtles power

The Turtles are challenging as improper a $210 million settlement that record companies made with SiriusXM about sound recordings made before 1972, according to The Hollywood Reporter.

Flo & Eddie, founding members of the 1960s pop group, are asking for an injunction to stop Sirius paying a settlement to ABKCO Music & Records, Capital Records, Sony Music Entertainment, UMG Recordings and Warner Music Group. They want the judge to order the money be paid into an interest-bearing account under the court’s control and direction.

A Recording Industry Association of America (RIAA) spokesperson told The Hollywood Reporter regarding Flo & Eddie: "They rightly trumpeted the recent settlement with Sirius XM as a significant step forward. However, their application is without merit and could force the delay of long-awaited payments to artists and labels who created iconic music for generations of fans."

Original Turtles members Flo and Eddie (Mark Volman and Howard Kaylan) alleged that Sirius violated its pre-1972 rights by publicly performing the recording and reproducing the recordings through back-up and buffer copies. Courts in New York and California have determined that The Turtles had exclusive rights under their state’s laws and their claims could proceed. However, a Florida court in June ruled there is no public performance right for pre-1972 recordings in Florida.



Facebook’s copyright challenge

Facebook’s video platform throws up a number of copyright issues, according to a Fortune article this week. Facebook videos get about four billion views a day, similar to YouTube.

The article says this raises the question of where all this video is coming from. Some of this is coming from uncredited repurposes of YouTube video, says Fortune.

"The only snag here, of course, is that content creators lose out on revenue as well. On YouTube, the tattoo guy earns 55% of ad revenue associated with the video while on Facebook he earns nothing."

Facebook told Fortune that it has tools in place to report copyright violation, remove offending material, and suspend the accounts of repeat offenders. "We take intellectual property rights very seriously," a spokesman said. "This is not new to Facebook."



Zorro put to the sword in Europe

The Cancellation Division of OHIM has ruled that the Zorro trade mark was invalid in the categories of printed matter and entertainment because it was non-distinctive, according to The Hollywood Reporter.

The division said in its decision that the term "Zorro" is recognized by the average consumer of the EU as being a fictional character defined by black clothing, hat, mask, bullwhip and rapier sword used to cut a letter "Z" into surfaces. But it said that the average consumer when seeing "Zorro" would assume the story of the character is being told but would not recognise it as an indicator of origin. This makes it merely descriptive and not sufficiently distinctive.

There have been 38 Zorro films, with the character played by actors including Douglas Fairbanks, Guy Williams, Anthony Hopkins and Antonio Banderas.



The real Duff

The Wall Street Journal claims that Fox has been forced into the beer-making business to protect its Simpsons intellectual property.

Fox is launching Duff Beer – the name of the fictional beer of choice of Homer Simpson – in Chile this week, and plans to roll it out to more South Amercian countries and Europe early next year.

The WSJ explained: "But why launch in Chile first? It was a case of, if you can’t beat ’em, join ’em. Fox has been fighting the rise of unauthorized versions of the brew in the Chilean market, and has had some success. The company filed an intellectual property complaint that led Chilean police to seize contraband bottles by the tens of thousands." Demand for counterfeit beer has increased across the region, forcing Fox into action.

The WSJ cited a law professor saying that Fox has been essentially forced into the beer business by intellectual property laws that don’t generally protect fictional products.



A patent to make you afraid of flying

An international patent application from Zodiac Seat France has caused concern, reports Vox.

The patent aims to "increase cabin density while also creating seat units that increase the space available at the shoulder and arm area".

The drawing along with the application, however, make it look more like nightmare of passengers sitting face to face.


Fast times at the Copyright Office

The US Copyright Office recently published a 234-page report on orphan works and mass digitalization. This has attracted some interest on the internet.

On The 1709 Blog, PhD researcher Rike Maier commented: "Interestingly, the recommendation the US Copyright Office makes is at its core a limitation of liability. That basically means that a reappearing rightsholder cannot claim full damages that would usually be available to him in case of a copyright infringement – if the infringer considered the work to be an orphan (details below). The Copyright Office rejects the idea of relying only on fair use or best practice statements, and also does not want to introduce a new exception to copyright (as we did in Europe). Rather, it goes back to the idea – limitation of liability – it had already lobbied for in the past."

She added that many aspects of the report are similar to the Shawn Bentley Orphan Works Act of 2008, which eventually failed in the House of Representatives.

The technology community doesn’t seem impressed by the report, as evidenced by a Techdirt article titled " Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself".

The Copyright Office has also been in the news recently as a result of legislation introduced on June 3 that would remove it from the Library of Congress and establish it as an independent agency. This was followed by the news that James Billington, the Librarian of Congress, will retire at the end of the year.



Also on the blog this week:

IPO releases lists of top organisations and universities granted US patents

IP in Asia (2) – four takeaways



In our news and analysis this week:

Michelle Lee: USPTO needs more Section 101 guidance

Canadian Intellectual Property Office appoints CEO

Apple’s $533m damages verdict vacated after "skewed’ jury obstructions

Federal Circuit narrowly denies rehearing of Cuozzo PTAB appeal

Federal Circuit rules two Intellectual Ventures patents are patent ineligible

Virginia district court rules against Redskins trade mark

US patent litigation on course for record year – Unified Patents

Gowlings and Wragge Lawrence Graham to merge

Data – Samsung most active PTAB petitioner in June with 23 IPRs

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RT @eLAWnora: FR Supreme Court adopts position similar to (current) UK one: intermediaries to bear implementation costs of blocking injunct…

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RT @5thCircAppeals: Electronic filing! #SCOTUS https://t.co/t2Sc5HyqnY

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RT @mdloney: "at least one organization predicts this bill of having as little as a 4% chance of being enacted" https://t.co/1iNz7RnTy6

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