Copyright disputes

Copyright disputes

1. Star Wars vs Battlestar Galactica
Perhaps the most notorious case of copyright is that of Battlestar Galactica, who apparently 'borrowed' a little too much from Star Wars.

Galactica was produced in the wake of the success of the 1977 film Star Wars. And sci-fi author Jerry Pournelle, starring on a guest panel in This Week in Teck (episode 223), explains that “20th Century Fox sued Universal Studios (the studio behind Battlestar Galactica) for copyright infringement, claiming that it had stolen 34 distinct ideas from Star Wars.” Among them was a character named Skyler, a tad too close to Skywalker, and the possibility of airing with the title "Star Worlds".

Universal Studios didn't take this news lightly. "I agreed not to use certain effects including laser streaks from our guns," said Galactica creator Glen Larson, who supposedly met producer Gary Kurtz to figure things out. "I always consider [the case] very unfair because we had met... and they were in agreement not to take any action."

Furthermore, they “promptly countersued, claiming Star Wars had stolen ideas from the 1972 film Silent Running (the robot drones) and the Buck Rogers serials of the 1940s,” said Pournelle. He goes on to say that after Fox was sued, he was paid $20,000 by Universal to show that Battlestar Gallactica and Star Wars were made from two different cloths.

In the end the case was decided in favour of Galactica two years later. Unfortunately, however, the original Battlestar Galactic" had been cancelled and cinemas were looking forward to seeing The Empire Strikes Back.

2. Apple vs Microsoft

The battle between these tech giants started with a simple question: who invented the graphical user interface (GUI)? The company that controls the interface of the next major operating system will have the ability to set the standards for application software, so it's unsurprising that Apple tried to stop Windows from becoming a major operating system.

It seemed that although Microsoft helped develop Macintosh, Jean-Louis Gassée, who had taken over from Steve Jobs at the time, refused to allow Microsoft to use their software. Bill Gates pressed on nonetheless, deciding to add in features of its own to early prototypes of the Macintosh. 

When Gassée noted the software, he was enraged. However, he didn't want a lawsuit, and ended up agreeing to license the Mac's visual displays. But Windows 2.0 turned out to be almost identical, and Gassée believed it to be a breach of contract, only having allowed their software to be used for 1.0 and not future versions.

So, without warning, Apple filed a lawsuit against Microsoft in 1988. Apple’s case included 189 contested visual displays that violated its copyright. This led to a six-year long battle.

In 1989, the court ruled that 179 of the 189 disputed displays were covered by the existing license. Furthermore, the other ten were not violations of Apple’s copyright due to the merger doctrine, where the idea–expression divide limits the scope of copyright protection by differentiating an idea from the manifestation of that idea.

The lawsuit was decided in Microsoft’s favour on August 24, 1993.

3. James Dyson vs Hoover

What has made Dyson so successful is the use of a bagless vacuum cleaner which uses two cyclones. One removes small particles while the other collects larger items. This is the patented technology that bitter rival Hoover infringed.

According to Dyson, before him, nobody in the field had thought to sell a bagless vacuum cleaner. However, Alberto Bertali, managing director of Hoover European Appliances Group, claimed that the Tripple Vortex “ recirculated dusty air between three cyclones and did not filter it.”

A counterclaim that the Dual Cyclone's technology was “nothing that was not generally known within the industry,” was dismissed by the High Court.

Unfortunately for them the High Court ruled that Hoover had intentionally copied the technology at the heart of Dyson's Dual Cyclone vacuum cleaner. Dyson said: “Their claims that the Triple Vortex is different were shown to be completely false. Hoover showed no interest in the technology when we were looking for backers. Then they rubbished it when we brought out the bagless cleaner, insisting that bags are best. Finally they came out with a blatant copy."

But Dyson failed to stop Hoover using the “Vortex” trademark on its bagless cleaners.

4. Apple vs Google

Apple is no stranger to court, especially when it comes to Google. After all, there are several companies that are making phones using Google's Android software. Steve Jobs repeatedly called the Android a "stolen product. I'm willing to go thermonuclear war on this."

Apparently things got so heated between Apple and Google that former Google CEO (and current chairman) Eric Schmidt stepped down from his position on Apple's Board of Directors.

In 2010, Apple sued Samsung. Google had to step in and help Samsung partly due to a 'Mobile Application Distribution Agreement'. A Google lawyer revealed that the company agreed to “provide partial or full indemnity with regard to four patents.”

And in one of the highest-profile lawsuits in technology, Motorola sued Apple at the same time Samsung was taken to court. Motorola accused Apple of infringing several patents, which included how cellphones operated on a 3G network. On the other hand, Apple claimed that Motorola violated its patent to certain smartphone features.

The case was dismissed in 2012, the year that Google acquired Motorola, on grounds that neither company had sufficient evidence. In fact, frustrated judges have thrown the Apple vs Motorola out of court three times, telling them to solve their problems between themselves.

Although Apple hasn't attacked Google, probably due to the fact that Google provides a variety of iOS software. Instead, the company chooses to go for the company selling Android devices, but it seem that the search giant is intent on defending Android.

It was only 16 May this year that Apple and Google released a joint statement saying that they have agreed to settle all patent litigation between them and that they will also “work together in some areas of patent reform”.

5. Gucci vs Guess

In 2009 Gucci sued Guess for infringing on five Gucci trademarks, including the use of similar logos. This is perhaps unsurprising given that Guess has been subject to 12 copyright complaints over the last ten years. But they have successfully managed to resolve all previous situations almost immediately... until they messed with Gucci.

Guess used many of Gucci's distinctive marks, including a green and red stripe used on handbags, the repeating, inverted GG pattern, and the company's use of brown and beige colours, mostly used in conjunction with diamond shape patterns.

Of course, Gucci came out on top, but not in the way they had hoped for. Initially asking for $221m in damages, the judge told Gucci they were only entitled to an accounting of profits and limited the damages. In the end, Gucci only received $4.7m.

Guess was also barred from using most of their designs ever again, primarily the Quattro G patterns in brown and beige colours and the CRG stripe.

What went wrong? Gucci's defence.

The judge concluded that “Over the years, Gucci has sent out hundreds of cease and desists letters to entities ranging from national companies such as Bebe, Juicy Couture, and Williams-Sonoma, all the way to small-time infringers, such as a counterfeiter working out of her Los Angeles apartment and a rabbi in New York, who they suspected might sell counterfeit Gucci products to benefit his synagogue.” When it came to Guess, they waited because the company was facing budgetary concerns due to counterfeiters.

Furthermore, the company had failed to bring non-speculative evidence to court.

6. A&M Records vs. Napster

For those who don't remember, Napster was a popular peer-to-peer file sharing network that launched in 1999. It had an amazingly large fan-base of music lovers who shared .mp3s. 

However, two years later the company was involved in a joint lawsuit filed by various record companies.

They didn't like the large-scale distribution of their music for free, and so sued the company for infringement on their intellectual property. This is what makes this case one of the most famous copyright infringement cases in history.

The court ruled against Napster and the company was forced to shut down the site after making a public apology and paying $26m in damages. It was their lack of effort to reduce infringement, mixed with the fact that the company financially benefited from it that set the decision in stone.

Copyright has never been an easy, black-and-white kind of issue. Arguments over copyright between creatives happen all of the time, it’s an inescapable issue.

Read through some of these famous court cases that have created major public discourse over copyright — how it’s handled, what it means, and why we should all care.

1. Rogers vs. Koons

Photograph: Art Rogers – 1985; Polychrome: Jeff Koons – 1988 (both via The Design Observer Group)

Case

Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to create a set of statues based on the image. Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by claiming fair use by parody.

Outcome

The court found the similarities between the 2 images too close, and that a “typical person” would be able to recognize the copy. Koon’s defense was rejected under the argument that he could have used a more generic source to make the same statement — without copying Rogers’ work. Koons was forced to pay a monetary settlement to Rodgers.

Significance

This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work? It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward.

You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist?

2. The Associated Press vs. Fairey

Photograph: Mannie Garcia – 2006 (via The New York Times); Poster: Shephard Fairey – 2008 (via Wikipedia)

Case

Famous street artist Shephard Fairey created the Hope poster during President Obama’s first run for presidential election in 2008. The design rapidly became a symbol for Obama’s campaign, technically independent of the campaign but with its approval. In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia — with the AP demanding compensation for its use in Fairey’s work. Fairey responded with the defense of fair use, claiming his work didn’t reduce the value of the original photograph.

Outcome

The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.

Significance

Though there wasn’t a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It’s unlikely that Garcia’s work could have ever reached the level of fame it did, if not for Fairey’s poster. Garcia himself stated he was “so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had,” but still had a problem with the fact that Fairey took the image without permission and without credit for it’s originator.

Credit, credit, credit! On 99designs you cannot use licensed work — but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source.

3. Cariou vs. Prince

Photograph: Patrick Cariou – 2000; Adaptation: Richard Prince – 2008 (both viaartnet)

Case

Richard Prince is a well known appropriation artist — one who transforms the work of others to create new meaning in his own work. For an exhibition in the Gagosian Gallery, Prince appropriated 41 images from a photography book by French photographer Patrick Cariou, claiming fair use that he created new meaning out of the photographs. Cariou argued that it wasn’t fair use, but copyright infringement.

Outcome

A judge ruled in favor for Cariou in 2011, claiming the changes made to Cariou’s photographs weren’t significant enough to constitute a change in meaning — fair use. However, the case is currently in appeal and the final decision has not yet been reached.

Significance

The initial ruling in this case in favor of Cariou has created huge divisions in the artistic community. It brings up questions about artistic intent and the subjectivity of art, asking “who was this judge to determine whether or not the appropriated artwork had enough meaning to be considered fair use” when the art could be interpreted differently by each person who viewed it. The jury is still out on this one.

Imitation vs. inspiration

Don’t be a designer who creates work too close to that of another. You have to make sure you are creating something original and not derivative.

—

Update 4/25/2013

Not two weeks after this article was published, the original decision in this case was overturned and the judge ruled in favour of Prince for the majority of the works in dispute, claiming that Prince’s work transformed the work in the way that it was aesthetically different, and thus acceptable under the argument of fair use. Read more about the decision as well as the 5 pieces which are still under review by a lower court in The New York Times and Hyperallergic.

4. Modern Dog Design vs. Target Corporation

Illustrations: Modern Dog – 2008; T-shirt: Target (both via Business Insider)

Case

Seattle design firm Modern Dog utilised a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011.

Outcome

TBD. There hasn’t been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue.

Significance

The Modern Dog case has brought to light a question burning in the mind of many designers and artists — what happens if a major corporation with many more resources than me, utilizes my artwork for profit? Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it’s turning into a very extreme situation for them. We’ll have to keep an eye out for how this progressed and continues to change the conversation around this issue.

Always defend your designs. Regardless of who you’re going up against — if you think your design is in the right, then make it known.

5. Vanilla Ice vs. David Bowie/Freddie Mercury

Video: DF Bothma (via YouTube)

Case

Vanilla Ice had a hit, in 1991, with Ice Ice Baby — it sampled but did not credit the song Under Pressure by David Bowie and Queen. Though at first denying it, Vanilla Ice later retracted the statement saying it was “a joke”. Facing a lawsuit by the duo, Vanilla Ice fessed to sampling the work.

Outcome

The case was settled privately out of court with Ice paying an undeclared sum of money and crediting Bowie/Queen on the track.

Significance

There’s really not a ton of meaning directly related to design with this one (except for, don’t use other people’s creative work!). But I couldn’t resist adding it. This is one of the most hilarious copyright cases ever.

Recently, a jury awarded the estate of Marvin Gay $7.4 million in the Blurred Lines case, sparking a firestorm of publicity and media attention. With this attention came a lot of dire predictions about how the case would be the end of creativity in the music industry and could possibly kill off entire genres of music.

However, it’s highly unlikely that those dire predictions will come true. The outcome of the case was heavily dependent upon specific facts within it and it’s unlikely that it would be replicated by another case, even one very similar.

Still, it’s easy to see why the case got to much media attention. It was custom built to become a media frenzy featuring two hit songs, four very popular musicians and an eye-popping award that was made to be splashed across headlines.

However, most copyright cases aren’t anywhere near that sexy and a lot of them have a great deal of potential to have a practical impact on copyright in the United States, including very noticeable impacts on end users.

So, now that we’ve had a month to calm down from the Blurred Lines verdict, let’s take the time to briefly look at a few cases that could matter a lot more and could change the way you create, buy, stream, sell and view content.

1. The Raging Bull Case

In the month since the Blurred Lines verdict,this case has been settled. Nonetheless, this case represents a fairly significant shift in thinking regarding the idea of laches and copyright.

The case centers around the movie Raging Bull, which was based on works by Frank Petrella and Jake LaMotta, the film’s subject. When Petrella died his rights to the work went to his daughter, Paula Petrella, who learned of it in 1990. However, she waited until 2009 to file a lawsuit over the film’s continued distribution, alleging that MGM, the film’s distributor, did not have all of the rights to the story.

MGM put forth a laches defense. Laches is essentially an argument one party has waited so long to bring forth a claim that the claim itself should be barred. The lower courts agreed with MGM, but the Supreme Court took the case and ruled in favor of Petrella, saying that laches did not bar her claim since the infringement was ongoing. Petrella would be limited to collecting damages by the three year statute of limitations, but the claim could move forward.

That kicked the case back to the lower court, where questions about what works the movie was based on and what rights were assigned, but those questions were avoided when the case was abruptly settled.

Why It’s Important: The application of laches in copyright was a very divisive issue before the ruling. However, this ruling has paved the way for similar lawsuits to be filed, including a recent one over the Nike “Jumpman” logo.

The facts of Petrella’s case mirror a surprisingly large number of other potential lawsuits, so expect to see even more such cases in the not-too-distant future.

Why It Was Ignored: This case actually got a modest amount of mainstream coverage because of the popularity of the movie. But laches is a fairly complex and dull legal issue by itself and it still received only a fraction of the coverage Blurred Lines did.

2. Oracle/Google (or Java/Android) Case

In 2010 Oracle filed a lawsuit against Google claiming that the search giant violated their copyrights and patents in the creation of the Android mobile operating system.

On the copyright side of things, the issue centred around the Java programming language’s application programming interface (API). An API is basically a set of instructions that tell an application how to interact with something else on the computer. Google, wanting to make Android accessible to JAVA developers, copied the Java API though nothing else from the language was copied.

Oracle sued claiming, in part, copyright infringement in the API. However, the lower court ruled that APIs could not be protected by copyright, siding with Google. Oracle then appealed that ruling, which was overturned. Google has now put the case before the Supreme Court, which in turn has asked for advice from the federal government.

Why It’s Important: The copying and reuse of APIs or elements from APIs is fairly common in programming. While Java is a programming language, these days almost every site, application, device or tool has an API that allows connected programs, devices, etc. to communicate with it.

While this likely won’t impact the use of an API for its intended function, many developers create APIs identical to or similar to others in the field to encourage others to create applications for it. If APIs are copyright protected and Google’s use is not a fair use, it could spell trouble for a lot of developers.

Why It Was Ignored: Explaining what an API is can be very difficult (so much sure I’m certain my explanation is inadequate). It’s a very complex technical term and it’s not something that directly impacts a large number of people outside of the tech community.

Still, this case has the potential to drastically change how various applications and devices talk to one another and could result in a great deal of additional litigation. If Oracle wins, its unlikely that this will be the last such lawsuit filed.

3. ASCAP/BMI Consent Decrees

In 1941 the Department of Justice (DOJ) settled a lawsuit against the American Society of Composers, Authors and Publishers (ASCAP), a performing rights organization (PRO) that oversees royalties collected regarding performances of a musical composition. That settlement resulted in a consent decree that places strong restrictions on how ASCAP could operate and created a rate court system to settle royalty disputes.

A similar consent decree was signed by Broadcast Music Inc. (BMI) in 1964, bringing both of the largest PROs under a very similar structure.

While I’ve discussed these consent decrees in greater detail here, they’ve come under fire in recent years as publishers have sought greater flexibility to negotiate royalties with streaming music services, including Pandora. The DOJ is now said to be reviewing those consent decrees with an eye on granting publishers many of their wishes.

These changes, if proposed by the DOJ and approved by the rate court judges, will drastically change the relationship between streaming music providers and PROs, leading, most likely, to higher royalties for PROs.

Why It’s Important: These consent decrees are at the heart of the music licensing business. Right now, they give a great deal of leverage to streaming music companies, who often end up never paying any royalties to PROs or reaching a final royalty agreement.

For most songwriters, this will likely mean more royalties from online services. For consumers, the outcome will depend on how streaming companies react and how the new negotiations break down.

If everyone is reasonable, the change could be minimal. But if things go poorly, we could see rate increases or more music companies exiting the market.

Why It Was Ignored: These consent decrees are invisible to most people. When you stream music on Pandora, you don’t think about the settlements that got the music there. They aren’t sexy, they aren’t simple to understand but they are vital to how you listen to music as everything from music in restaurants to digital streaming is covered under it.

4. The Turtles vs. The World

When the U.S. government created the copyright act of 1909, it didn’t provide protection to sound recordings, which were scarce at the time. However, even as the recorded music industry grew, it was not added until 1972 and previous sound recordings were not placed under federal protection at that time.

This means that all sound recordings (not compositions, which are federally protected) are under a myriad of state laws. This came to a head in 2013 when members of The Turtles filed a lawsuit against satellite music service SiriusXM claiming that they were failing to pay royalties for publicly performing their music. However, since there is no federal protection, the lawsuit has instead been filed in a series of state courts, including New York, California and Florida.

To date, the band has actually scored several victories, with judges in California and New York both agreeing that there is likely a public performance right under their state’s laws. However, the Second Circuit has agreed to take the case, setting the stage for possible federal intervention in the lawsuit.

Why It’s Important: The wealth of music recorded before 1972 needs no introduction. This case, obviously, could have significant consequences regarding how, when, where and at what cost it is played.

But the potential implications go well beyond that. Serious questions arise as to how all federal laws apply to pre-1972 sound recordings, if they do at all. For example, the Digital Millennium Copyright Act, which protects hosts from liability for infringement by users, may not apply to such recordings. The issue was previously litigated, without a real resolution.

However, the biggest impact may be in the form of bills that address this issue, and could cause even larger shifts in the copyright landscape.

Why It Was Ignored: Like most music licensing elements, this is an arcane area of copyright law that has little direct impact on most people. Even explaining why pre-1972 sound recordings are treated different takes a great deal of time and energy. It also doesn’t help that the main lawsuit involves a band that isn’t as recognizable as the artists in the Blurred Lines case.

5. Dentures and Patents

A company named Align Technology holds a series of patents relating to the Invisalign system, which is used to straighten teeth. A company named ClearCorrect, however, began infringing on those patents by having its offices in Pakistan do the “staging” of the appliances, which are sent back to the United States for 3D printing.

The case was brought before the U.S. International Trade Commission (ITC) where Align Technology sought to block the “importation” of the patent infringing technology, even though the importing was purely digital. The ITC ruled that it could block that importation, giving itself the ability to block content from being imported to the U.S. via the Web. However, the case is now on appeal to the Federal Circuit Court of Appeals.

While this is a patent case, the movie industry and others are watching it closely to see how it could impact copyright as the ITC also is responsible for blocking the importing of copyright infringing goods. As such, if the ITC has the power to block patent-infringing works over the Web, it could theoretically do the same with copyright-infringing ones as well.

Why It’s Important: If the ITC is ruled to have the authority to block digital imports into the United States, this could lead the ITC having broad authority to block and limit copyright infringing material being transmitted to the United States. How this would be applied is unknown, but it would be a potentially far-reaching power for an organization that has had little attention paid to it in other copyright matters.

The ITC, for its part, is downplaying the significance, saying that it’s just “a case about teeth.” But while it may be a case about teeth, most agree it’s a case that potentially has teeth of its own.

Why It Was Ignored: The ITC is relatively obscure, patent law isn’t sexy and, as the ITC said, this is a case about teeth.

The case actually got more attention among the 3D printing community and has only recently been noticed at all by the copyright community, despite the clearly possible implications.

All in all, it’s a bizarre case that only impacts copyright in a roundabout way, but it could be a very big way.

6. Ironman, Ghostface Killah and Sampling

Finally, when the rapper Ghostface Killah released his albumSupreme Clientele, he twice used samples from the 1960s TV show The Marvel Super Heroes, in particular the Iron Man Theme. However, the composer of that theme, Jack Urbont, sued the rapper and his label, Sony, over the sampling saying they didn’t have his permission.

However, Sony hit back, not by just challenging the legitimately of the sample, but by claiming Urbont didn’t own the song. Urbont wrote the song for Marvel and was paid $3,000. However, he was not an employee of Marvel. Still, Sony argued that the song was a “work for hire” and that Marvel owned the rights to it. The judge recently agreed and awarded summary judgment to Sony, saying Urbont lacked the standing to sue.

What makes the case interesting because work for hire typically involves people who are direct employees, not independent contractors (at least not without explicit prior agreements, which there was none in this case). Further, Urbont not only was awarded a certificate of registration but, in 1990, in reached a settlement with Marvel that declared him the “owner” and Marvel the “licensee” of the song.

Why It’s Important: Work for hire is one of the thorniest issues on the web right now. More than ever people are working as independent contracts and consultants (myself included) often without explicit contracts, creating constant questions about who owns what.

This case, especially if this ruling stands, could be a major shift in the thinking about work for hire. An independent contractor with no agreement prior to start of work may no longer be the owner of the work, even if a settlement between them and their employer says so? It seems far-fetched, but the potential impact is very clear.

Why It Was Ignored: This one has been getting a fair amount of traction due to the big names involved, but the legal issues have largely fallen by the wayside. That’s because work for hire is very confusing and nuanced. Even the term “work for hire” is something of a misnomer.

While this case has a lot of elements for a great mainstream copyright story (well known musician, sampling, Marvel, super heroes, etc.) the legal issues it focuses on just aren’t as interesting as accusations of plagiarism and direct infringement.

Bottom Line

So, are all of these cases going to be major ones that shift the copyright landscape? Of course not. All of these are simply cases that have implications far beyond the dispute at hand and are being weighed on right now (or were very recently settled).

The problem with the Blurred Lines case is that, while it was very interesting, the ruling hinged on the specific facts, which were very unique to that case. It was a very sexy case for the media, with big names and big damages, but it is most likely a one-off deal, something that won’t be replicated (assuming it even survives appeal).

These cases, depending upon the outcome, could have drastic impacts for other content creators and content consumers alike. While the impact is impossible to predict beforehand, the potential is there.

So, while the media likes to obsess over celebrity feuds and allegations of plagiarism, the truth is that the cases that may actually make copyright history are lurking just under the surface.