Condensé de Jurisprudence : US and UK Copyright law

February 25, 2015

Ces condensés visent à donner donner une liste non exhaustive d’arrêts majeurs à propos d’un thème donné, résumés par les étudiants du master 2 Droit des Activités Numériques de Paris Descartes.

Ci-dessus : extrait de la lithographie d’Oscar Wilde litigieuse prise par le photographe Sarony, entrée dans le domaine public.

 

Supreme Court of the United States – Burrow-Giles Lithographic Co. v. Sarony (1884)

 

Full text can be found here

 

Sarony filed a copyright infringement suit against a lithography company which had marketed unauthorized lithographs of his photograph of Oscar Wilde. The company argued that photographs did not qualify as “writings” or as the production of an “author” according to the grant of power to Congress under the American Constitution. Therefore, the Copyright Act of 1970 which extended protection to photographs was unconstitutional.

 

The Supreme Court decided that it was within the Congress’s power to extend copyright protection to photographs so as long as they are a representation of an “original work of art”. The criterion for protection is originality.

 

 

 

By Inès Akika

 

 

Supreme Court of the United States – Feist Publications, Inc v. Rural Telephone Service Co. (1991)

 

Full text can be found here

 

Are directories (telephone listings) protected by copyright law? The Copyright Act of 1976 includes compilations, but for the first time the Supreme Court considers that originality is a major requirement. A factual compilation can be protected by copyright, if it features an « original selection or arrangement of facts« . In this case the directory is “devoid of even the slightest trace of creativity”, therefore not protected. The very popular “sweat of the brow” doctrine , based on a misinterpretation of the Copyright Act of 1909 according to the Justices, is rejected. A mere collection of fact is considered as unoriginal (so not protected by copyright) no matter how much work it took.

 

By Eric Gyselinck

 

 

United States Court of Appeals, Third Circuit – Williams Electronic, Inc. v. Artic International, Inc. (1982)

 

Full text can be found here

 

Williams Electronic made a video game called “DEFENDER”, and Artic made a knock-off version called « Defense Command » that used pretty much the exact same images and program.

 

Article 17 §102 of U.S. Code requires for copyright protection that a work must be fixed in any tangible medium of expression. The defendant, Artic, argued that audiovisual effects moves around the screen and disappear. They are not fixed. Each time the game is played, the images are redrawn over again. In addition, the player controls the action and is in a sense a ‘coauthor’ of what appears on the screen. So it could not been protect by the U.S. C.

 

The Appellate Court decided that the term fixed should be read as « sufficiently permanent or stable to permit it to be[…]reproduced or otherwise communicated.«  Player’s participation in the game did not withdraw the work from copyright eligibility. Regardless of how the game is played, a substantial portion of the images do not change. Therefore, audiovisual effects in a video game are entilteld to copyright protection.

 

By Matthieu Noel

 

 

England and Wales High Court (Chancery Division) – Creation Records v. News Group Newspapers Ltd (1997)

 

Full text can be found here

 

A photographer from The Sun took a picture at a confidential photo-shoot of the band Oasis that was similar to the actual picture appearing on Oasis’ album. His photograph was published in The Sun and the magazine offered its readers to get it as a poster.

It was judged that the scene of the photo-shoot of « random objects » cannot be granted copyright protection (it is ephemeral, not fixed, there is no originality and it is not a collage). Protection was granted on the ground of breach of confidence. In this case, copyright protection for the photograph of a scene was refused because it is not fixed, which means that several people can take the same photograph of a same scene and not be granted copyright on it.

 

NB : In the Temple Islands case 15 years later, a photographer took a similar picture of another photo and was granted copyright protection.

 

 By Inès Akika

 

 

Court of Justice of the European Union – Infopaq International A/S v. Danske Dagblades Forening (2009)

 

Full text can be found here

 

 

A media monitoring and analysis business (Infopaq) selected articles from the Dannish written press, with the help of keywords provided by customers. Summaries of said articles were sent to these customers in digital form. It was done without the author’s consent. In 2005 the Danske Dagblades Forening, an association for Danish newspaper publishers became aware of Infopaq’s activity, saw it as an infringement of the right holder’s copyrights and complained to the company.

 

Infopaq wanted their right to reproduce press articles without the author’s consent to be recognized in virtue of the 2001 Directive exemption of temporary reproduction. In the end, their acts of reproduction didn’t fulfill all the criteria.

 

More importantly, the case finally gave a harmonized definition of originality. They chose to apply a notion close to German and French law (an original work is the author’s own intellectual creation) instead of the UK one (originality as the combination of labor, skill and judgment).

 

By Anne Morand de Jouffrey

 

 

England and Wales Patents County Court – Temple Island Collections Ltd v. New English Tea Ltd (2011)

 

Full text can be found here

 

The case was about an alleged copyright infringement of Temple’s Island photo. The photographs were taken from the south of the river Thames, which captured a red Routemaster bus crossing Westminster Bridge, with the Houses of Parliament, Big Ben and Portcullis House in the background. Everything was in black and white except for the red bus.

The original one was taken by Temple Island and the alleged infringing one was taken by New English Tea Ltd. The judge considered that a substantial part of the picture has been reproduced by the defendant : there is a copyright infringement. The decision seems to widen the scope of copyright and to protect ideas.

 

By Emilie Faucheux

 

 

Perfect10, Inc. v. Google Inc. (9th Cir. 2007)

 

Full text can be found here

 

On the one hand, the plaintiff, Perfect 10, is an adult entertainement magazine which sells copyrighted images of naked models. On its website, susbcribers have access to Perfect 10’s images when they pay a fee every month. Perfect 10 also licenses reduced-size copyrighted images for download and use on cell phones.

 

On the other hand, the defendant, Google, as we all know, is a search engine which give access to thousands of websites. Google also provides a search engine for images, which permits to identify text in its database responsive to the user query and then communicates to users the images associated with the relevant text. Google displays thumbnails copies of Perfect 10’s photos and link to the third party websites, which hosts the full-sized infringing images.

 

The issue here is that some website republish Perfect 10’s images on the Internet without any authorization. And, as Google provides thumbnails and in-line linking to the infriged images, we were wondering if the use of thumbnail constituted a direct infrigement, and if yes, could it be qualified as fair use ?

 

In front of the District Court of California (2006), Perfect 10 claims that Google’s program directly infringes two exclusive rights granted to copyright holders : its display rights and its distribution rights. In response, Google contends that its use of thumbnails is a fair use of the images under Paragraph 107 of the Copyright Act, and therefore does not constitute an infringement of Perfect 10’s copyright.

 

The Court, according to the four factor’s doctrine analysed :

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  • The nature of the copyrighted work;

  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

  • The effect of the use upon the potential market.

Actually, the District Court’s rejected Google’s defence. Its holding had distinguished a similar claim, Kelly v. Arriba Soft Corp. 2002 (which held that using thumbnails was fair use) based on the fact that Perfect 10 also sells reduced-size images, and Google’s thumbnails might affect significantly the market for those reduced-size images.

 

But the Supreme Court (the Ninth Circuit Court) put the four factors in balance, and ruled that Google’s thumbnails had a use fundamentally different than the use intended by Perfect 10 (access to information on the Internet versus artistic expression). The thumbnails was considered as a new work, created in a new context and was thus, highly transformative. In doing so, Google has provided a significant benefit to the public, and Google’s use of Perfect 10’s thumbnails was qualified as fair use. 

 

By Sixtine Paglia

Share on Facebook
Share on Twitter
Please reload

Featured Posts

Pratiques professionnelles : Examen de plaidoirie en PI

May 5, 2019

1/8
Please reload

Recent Posts
Please reload

Archive