CDAS represented producer Blumhouse in its deal to acquire rights to the James McBride book, the deal with Ethan Hawke (who stars as abolitionist John Brown), and the deal with Showtime where the miniseries will premiere on August 9. Watch the trailer here.
At a time when we are stuck at home, working or “working” (or, sadly for many, not working) the tenet that content is king has never been more relevant. From Disney+ releasing “Frozen II” and “Onward” early to help placate restless youngsters, to DreamWorks releasing “Trolls World Tour” for “theatrical” in-house rental, to Instagram sensation DJ D Nice offering his “Club Quarantine” and “Homeschool” IG parties and Spotify playlists, there is something for everyone on one platform or another. Musicians are even offering special live-streamed performances from their homes (thank you Dave Grohl, Billy Joe Armstrong, et al.).
While the Disney and DreamWorks releases were clearly authorized corporate decisions, the world of quarantine content becomes murkier when one turns their overly scrubbed fingers to the keyboard. Of course, the lead singers of Foo Fighters and Green Day, respectively, likely have the rights to publicly perform music they wrote, and reports indicate that DJ D Nice made licensing deals to avoid copyright claims stemming from his streaming discotheques. But in the further corners of social media, the always-gray field of copyright has spawned more than its usual fifty shades in the time of COVID-19. So, what about musicians performing other artists’ songs? Fitness instructors on Instagram Live with their playlists thumping in the background? The Internet Archive[i] offering its own “Emergency Library” of digital copies of books (a decision decried by the Authors Guild and Association of American Publishers, but claimed to be fair use by archive.org)? Or DJs who, unlike DJ D Nice, did not have permission to publicly perform or remix the music featured during that IG virtual dance party?
At least in the latter case, some DJs and performers streaming on Instagram Live have reported that they’ve had their streams cut short by copyright infringement claims over use of musical content without authorization. Lesser-known and aspiring artists (who, like many, are out of work at this time) are having their online raves canceled mid-performance. But at the same time, artists whose content is being used may also be out of work and may be incentivized, perhaps more than usual, to enforce their copyright rights and preserve their dwindling income streams. This presents a sensitive nuance to an already delicate balance between online content usage and rights enforcement.
There is no timelier example of COVID-era copyright enforcement than Richard Liebowitz, the infamous plaintiff’s lawyer behind more than 2,000 copyright infringement lawsuits filed by photographers over the last four years. His business model – which he characterizes as fighting for photographers’ rights, and much of the digital media industry characterizes as “trolling” – has, like COVID-19, mutated to adapt to its new circumstances. It was recently reported[ii] that, despite quarantine and widespread isolation (or perhaps because of it), Liebowitz’s filings have actually increased, with his firm filing 51 lawsuits between mid-March and early April (39% of all copyright infringement lawsuits filed since the World Health Organization declared a global pandemic).[iii] Likewise, porn studio Strike 3 Holdings is also keeping busy during the pandemic, having filed a more modest 11 new lawsuits since mid-March.[iv] The uptick in these types of cases is potentially correlated to the increased use of content during quarantine and the reduced number of opportunities for photographers and other content creators to earn a living. So, what’s a pandemic hermit to do?
The short answer: the same thing you’d do in pre-COVID life. Even in these strange times of social distancing and mandatory isolation, the same rules apply even when unauthorized content use is undertaken for seemingly laudable reasons such as alleviating boredom, distracting your kids, or entertaining your Instagram followers. For better or for worse, there is no exception in the Copyright Act for what’s going on out there, so vigilance in defense as well as enforcement is paramount. For instance, the test for fair use set out in section 107 of the Copyright Act of 1976 requires a lot more than benevolence in alleviating boredom or even supplementing one’s income during hard times to successfully fend off a claim of infringement. One of the keys to establishing a viable fair use defense is “transformative use” – use of existing content that adds new expression, meaning, or message to the original underlying work. Simply using the content as intended, even in an unprecedented environment, almost certainly will not be considered transformative. As tempting as it may be to utilize others’ content for a seemingly good cause, good intentions do not a fair use make.
Best practices for content usage remain largely unchanged. The first-tier best solution is to use vetted licensed content (ideally pursuant to representations, warranties, and indemnification from the licensor) or seek permission, preferably in writing, directly from the copyright owner. There are plenty of options out there for many types of content. Licensing agencies like Getty Images, Shutterstock, Adobe, and Pond5 are stalwarts for visual content. Many book and journal publishers are now offering resources[v] for newly minted home teachers. Creative Commons licenses and use of public domain material are also viable options, particularly for photographic content, although may be less useful for things like popular music and are not always fool proof. Music licensing is a unique beast that could fill an entire treatise, but suffice it to say that several licenses may be required depending on the nature of the use, including public performance licenses from performing rights organizations like ASCAP, BMI, SESAC, and Global Music Rights, “mechanical” licenses from music publishers and “master use” licenses from labels when content is downloadable, and synchronization licenses from publishers and record labels for music that is cued up with accompanying video content. It’s certainly worth noting that some sites offer royalty-free and low-cost licensable music, such as Freeplay Music, Audioblocks, and Free Music Archive, without the added worry of the music licensing labyrinth.
Reliance on defenses like fair use should be a last resort, and in such cases, it is always wise to seek advice from an experienced copyright lawyer. And, on the other side of the equation, if you believe your content is being used in a way that violates your copyright rights, platforms like YouTube and Instagram have DMCA takedown forms for removal of infringing content, but recent developments in the law require at least some consideration of whether the user has potential defenses (such as fair use) before submitting a takedown notice.
As we stay vigilant against the virus that is causing so much havoc worldwide, we must also make sure that we stay within the bounds of the law and mitigate our legal risks as we mitigate our health risks. While troubled times such as these call for cooperation, collaboration, forgiveness, and flexibility, absent content owners and users working together to reach mutually beneficial arms-length deals, or the creation of a collective effort to allow free use of IP like that of Open COVID Pledge[vi] for health-based patents and technology, the rules remain as they were even if the world outside doesn’t.
This article appeared in the May 1st issues of LAW360 Intellectual Property, LAW360 Media & Entertainment, and LAW360 Coronavirus.
[i] “Announcing a National Emergency Library to Provide Digitized Books to Students and the Public,” Internet Archive Blogs (Mar. 24, 2020), https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/
[ii] Bill Donahue, “During Pandemic, Prolific Copyright Lawyer Keeps Suing,” Law360 (Mar. 27, 2020), https://www.law360.com/ip/articles/1257593/during-pandemic-prolific-copyright-lawyer-keeps-suing?nl_pk=db11a53e-b04f-44a7-96e1-76824544133d&utm_source=newsletter&utm_medium=email&utm_campaign=ip
[iii] See id.
[iv] See id.
[v] “What Publishers Are Doing to Help During the Coronavirus Pandemic,” Association of American Publishers, https://publishers.org/aap-news/covid-19-response/
Broadway producers interested in recording musicals for streaming platforms should pay attention to a new lawsuit.
The complaint was filed by Chapman Roberts, a Broadway music arranger, and alleges that a team of Broadway producers entered into an agreement with the plaintiff in 1994 to make original vocal arrangements of some famous songs from Jerry Leiber and Mike Stoller for their musical revue, Smokey Joe’s Café. According to the complaint, the contract stated that Roberts’ arrangements in the show could not be performed, transcribed, recreated, copied, published, or recorded without his permission.
But, according to the complaint, in 1999, Broadway Television Network recorded a couple of performances of the Tony Award-nominated show without Roberts’ permission.
“When Roberts learned of this, he contacted BTN, and BTN then asked retroactively for permission to commercially distribute the recording of the [m]usical to the public,” his lawyers claim. But, it is alleged that no agreement was ever reached, and Broadway Television Network broadcast the recording as several pay-per-view events and then licensed it for distribution through BroadwayHD, a video on-demand service for musicals and plays.
More recent digital streaming licenses of the recording purportedly have occurred, and in October, Roberts sued Broadway Television Network, BroadwayHD, and several other related parties in federal court, alleging direct and contributory copyright infringement and the intentional and knowing distribution of false Copyright Management Information.
The merits of this lawsuit aside, which the court will decide in due course, Broadway producers should bear in mind the following three lessons from the allegations in the lawsuit.
1. When creating an audiovisual recording of a theatrical production, Broadway producers should be certain to obtain all of the necessary rights. Experienced entertainment attorneys can help producers determine which rights are necessary and who owns them – and then negotiate the deals for those rights.
2. The rights to various protectible elements required to perform a work on stage do not necessarily include the right to create and exploit an audiovisual recording of the same work on stage. While some contracts might include provisions that address audiovisual productions, for many elements of a theatrical production, it is likely that the audiovisual rights will need to be granted in a separate license agreement.
3. If Broadway producers cannot successfully obtain all of the necessary rights for an audiovisual recording of a theatrical production, then they should not proceed with distributing the recording. Missing some of the necessary rights will frustrate deals with distributors who do their homework, and the recording might result in a lawsuit, like this lawsuit involving Smokey Joe’s Café.
The case is Chapman Roberts v. BroadwayHD LLC et al., Index No.: 1:19-cv-9200 (S.D.N.Y. Oct. 4, 2010).
“Stay Home With: Yungblud,” a weekly series featuring the U.K. recording artist and his band as they create music while in quarantine, premiered this week as part of YouTube’s “Stay Home #With Me” campaign. Amy Stein represented producer Stick Figure Entertainment in the license agreement with YouTube and agreements with Yungblud and his label, Interscope. Viewers are encouraged to donate to No Kid Hungry.
Blumhouse’s bittersweet documentary “A Secret Love” premiered today on Netflix to rave reviews. Simon Pulman represented Blumhouse in its deal with the filmmakers, Briana Hill was involved in the film’s financing, and Calvin Mohammadi and Simon represented Blumhouse in its deal with Netflix. Watch the trailer here.
The highly regarded “Guide to the Top Lawyers and Law Firms” described CDAS as a “highly skilled boutique offering excellent capabilities handling trademark and copyright infringement cases, as well as substantial portfolio management matters. [CDAS] exhibits expertise acting for market-leading entertainment, media and digital platform clients.” In addition to recognizing the firm for Intellectual Property: Trademark, Copyright & Trade Secrets (New York), Nancy Wolff was also recognized as “a leading attorney in IP issues relating to digital media, counseling clients in a broad range of matters including disputes and licensing.”
This beautiful reimagining of J. M. Barrie’s beloved characters, produced by Andrea Cannistraci’s client Paul Mezey and for which Andrea provided production legal services, is widely available as of today. Watch the trailer here.
Since the emergence of social media, courts, content creators, and publishers alike have been grappling with legal issues concerning the practice of “embedding” copyrighted content. Following the controversial February 2019 decision in Goldman v. Breitbart News, LLC – rejecting the Ninth Circuit’s “server test” and holding that an embed constitutes a “public display” exposing a content user to liability under the Copyright Act – the pendulum had seemingly swung in favor of content owners, creators, and licensors.
Yesterday, however, Judge Kimba Wood of the U.S. District Court for the Southern District of New York, issued a ruling in Sinclair v. Ziff Davis, LLC et al, providing publishers and other content users with a defense to alleged copyright infringement premised on the practice of embedding in the context of social media platforms: a valid sublicense granted to the user by Instagram via the interrelated agreements available on its platform.
Sinclair, a professional photographer, publicly shared her copyrighted photograph “Child, Bride, Mother/Child Marriage in Guatemala” on her public Instagram page, which was viewable by anyone. Media and entertainment platform Mashable made an offer to license the photograph from Sinclair for use in an article entitled “10 female photojournalists with their lenses on social justice.” Sinclair rejected Mashable’s offer, but Mashable proceeded to use Instagram’s application programming interface, or “API,” to embed Sinclair’s original Instagram post in its article. The embed frame of Sinclair’s Instagram post, as it appeared in the Mashable article, was hosted on Instagram’s servers, linked back to Sinclair’s Instagram page, and included the photograph, Sinclair’s original caption, and the date of the original post. The Mashable article specifically discussed Sinclair and her work above the embed. Sinclair filed suit against both Mashable and its parent company Ziff Davis, LLC for copyright infringement.
While the Court conceded that Instagram’s integrated agreements could be more concise and accessible, it declined to accept Sinclair’s contention that the agreements were unenforceable because they were purportedly “circular,” “incomprehensible,” and “contradictory.”
Judge Wood also touched upon a real dilemma faced by professional photographers: deciding whether to remain in “private mode” on one of the most popular public photo sharing platforms in the world, or to promote and share work publicly. On the one hand, sharing content publicly allows widespread exposure and can be effectively used to market and promote one’s work. Indeed, many photographers today use Instagram as a digital portfolio, showcasing their works to the masses. On the other hand, if sharing content publicly grants a valid sublicense to publishers of digital content, the licensing value of such content may be diminished.
This holding is likely to send shock waves throughout the creative community as rights holders may be forced to rethink how they make their works available to the public. Alternatively, for publishers and media entities, it allows use of publicly available content provided the publisher uses the embed API that links directly back to the Instagram account user’s full Instagram page.
Moving forward, courts will likely consider the terms of service (including the content owner’s choice of privacy settings) and the type of embedding at issue (i.e., the “framing” of standalone images as in Goldman, versus the prototypical “embedding” using Instagram’s API as in Sinclair). Courts may also consider the context of the use at issue as well, such as whether the use of the image transformed the purpose of the original work, or whether it is merely illustrative of the article. Before considering embedding any content, publishers should carefully review all relevant terms of service and seek legal counsel as platform policies are not uniform and there is uncertainty in the law.
As the spread of COVID-19 has forced almost all Americans to stay at home, many podcast programs have seen the size of their audiences shrink. One podcast publisher shared that the number of people downloading its shows has dropped 19 percent over the past two weeks, and Lindsay Graham of the audio production company Airship confirmed that his firm was “down 20 percent across the board.”
Click here to read how Broadway Podcast Network seems to be bucking the trend.