Guest Post: The Most Interesting “Appropriation” Cases to Watch in 2016

Oh just wait for that injunction. Although, Peters says he has prepared for this and is willing to defend it, it’s going to cost him lots of those crowdfunded dollars. Unfortunately for Peters, there are downsides to having one of the biggest film projects in Kickstarter history. Peters reported having a meeting with CBS on the project, as “CBS has a long history of accepting fan films,” Peters told the entertainment site, The Wrap. But that’s before it looked like the film wouldn’t make money. Interestingly, there might be some legs to what Peters is saying if he can allege that Paramount and CBS knew about and authorized him (granted a license) to go forward with the film.

3. If You Can’t Beat Streaming, File A Class Action:

Spotify has a couple class actions against it, including one initiated by Cracker front man, David Lowery, alleging Spotify willingly and unlawfully reproduced and distributed compositions without obtaining mechanical licenses. Within two weeks of the Lowery suit, another class action was filed against Spotify.

As Spotify states: “When one of our listeners in the U.S. streams a track for which the rightsholder is not immediately clear, we set aside the royalties we owe until we are able to confirm the identity of the rightsholder,” the company wrote in a blog post shortly before the first lawsuit was filed. “When we confirm the rightsholder, we pay those royalties as soon as possible.”[3]

In the meantime, Spotify is talking with the National Music Publishers’ Association. (NMPA), and Spotify has announced plans to build a publishing administration system, which they hope will satisfy publishers and songwriters, allowing them to claim payments for monies owed. I smell settlement in the air, but it takes massive actions like this to create enough pressure to make steam that creates change.

4. Google Books Is A Great Way to Discover Books-except for all those missing pages.

In the case, Authors Guild v. Google Books, Inc.[4] the Authors Guild has asked the U.S. Supreme Court to overturn a federal appeals court’s rulings on transformative use, according to a petition for review filed Dec. 31. The future of fair use could hinge on this case. [5]

The Authors Guild has been fighting Google in court since 2005 over its mass digitization of library collections in order to create a database for full-text searching. The Authors Guild rightfully argues that there is a circuit split regarding fair use and specifically the “transformative use” factor. It’s often in times of circuit splits that the Supreme Court will take up a case.

Some of the questions presented in the Guild’s petition are:[6]

Whether, in order to be “transformative” under the fair use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell and as the Third, Sixth, and Eleventh circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth circuits have held; and

Whether the Second Circuit has erred in making “transformative purpose” a decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged.

With a split in the circuits, the Supreme Court is the one in the hot seat.

5. Prince’s Newest Artwork: Graham v. Prince[7]

Richard Prince’s “New Portraits” exhibition in 2014 seemed to take the Second Circuit’s ruling in Cariou v. Prince and test every line and measure. In his newest works, Prince enlarged his screenshots of Instagram images after cryptically commenting on them and reprinting the images on 6-foot by four-foot canvases. In some cases, these “originals” sold for up to $100,000. It seemed to me this was an exercise for Prince in baiting numerous, mostly amateur artists or instagrammers to take him up on another trip on his fair use merry-go-round.  Many of them had creative reactions, reselling prints of Prince’s images or labelling themselves co-authors. (Prince commended these responses on his twitter feed). But on December 30, 2015, one of them finally bit on Prince’s “so sue me” bait. Except, this artist wasn’t an amateur. Professional photographer, Donald Graham, filed a copyright infringement suit against Prince for use of his work entitled, “Rastafarian Smoking a Joint” in his “New Portraits” exhibition. Rastas seems to be an ongoing theme with Prince’s litigation, making one wonder, did Prince foresee this?

Graham’s complaint argues that Prince went further in the “New Portraits” exhibit than he did with Patrick Cariou’s images in that there were basically no alterations of his original photograph.

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