New Boundaries For Copyright Law?

Wednesday, August 15th, 2018 @ 4:45PM

Here’s something we love about intellectual property law.

Technology has led to IP being shared more widely and easily than ever before. So even though the law itself can be slow to change, new potential matters pop up all the time.

What aspects of a photo need to be licensed? Who owns the laughing face emoji you just sent in a text? Those are just a couple of the modern copyright issues we tackle this month.

TOO UTILITARIAN FOR COPYRIGHT PROTECTION?

A recent federal court decision here in Florida is making waves in the legal community. In Pohl v. MH SUB I, LLC (2018 WL 3154467 Northern District of Florida, 2018), the plaintiff dentist sued a competitor for using the plaintiff’s “before and after” photos of his dental patients.

Though the plaintiff had already been granted copyright protection, the court ruled that the plaintiff’s photos didn’t qualify for it. The rationale was that the photos were utilitarian in nature and merely served to identify what someone could expect to get from the business.

In other words, the court said there was nothing original about the plaintiff’s photos. However, “originality” as required by the Copyright Act isn’t about doing something novel or creative; all it means is that the item sought to be copyrighted isn’t copied from somewhere else.

Moreover, it is difficult to quantify creativity and how much of it was required for the photos. To be sure, the images copied were close-up images of mouths. But many decisions were made in order to create them: who to model, what lighting to use, the camera angle, lipstick colors, and more. Are these not creative choices?

The possible implications of this case are massive when you consider other types of cases this ruling could impact. According to this reasoning, any photo that’s part of a reality-based ad campaign isn’t copyrightable.

We’re curious to see if the plaintiff will appeal to the Eleventh Circuit.

GRAFFITI ARTIST SUES GM FOR INFRINGEMENT

Should graffiti be copyright-protectable?

That question is at the heart of a lawsuit filed against General Motors by Adrian Falkner, the Swiss graffiti artist known as Smash 137.

Falkner had been commissioned several years ago to create a graffiti mural on a parking garage in Detroit. GM later did a photo shoot for a Cadillac ad campaign in front of the mural. Falkner didn’t authorize or even know about such use, so he filed his suit.

In theory, graffiti should enjoy strong copyright protection, as it is a fixed, tangible form of expression. Yet courts recently have been left to wrestle with a few issues that are far from clear. For example, should commissioned graffiti (like Falkner’s) enjoy more protection than unauthorized graffiti? And what constitutes protectable work? Do words on a bathroom wall deserve the same level of protection as Falkner’s work?

These “gray area” issues have yet to be resolved. Similar suits by other graffiti artists have been either settled out of court or dropped altogether.

For its part, GM defends that Falkner’s work isn’t copyrightable under 17 United States Code § 120(a), which states:

  • The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

GM argues that Falkner’s work is part of the architecture, and its placement outdoors on the parking garage makes it publicly visible.

Falkner’s lawyers counter that this exemption within the law was intended to allow the public to photograph and post images of significant structures like the Empire State Building or the Capitol Building in Washington DC. Moreover, to render Falkner’s work not copyrightable under this clause would mean that most graffiti couldn’t be protected, as it’s generally on buildings and often publicly visible.

It’s worth noting that the copyright in a work is separate from the object on which the work is embodied. This is a hurdle GM will need to address as the case progresses.

Like the Pohl case, the implications here could be big. We’ll be watching to see if this case goes to trial.

WHO OWNS YOUR EMOJI?

Whether you’re texting or on social media, emojis have become an important part of how we communicate.

But here’s a question…

At some point, someone invented emoji. So does the inventor (or someone they assigned their rights to) “own” them?

In other words, are emoji copyrightable? By whom? How are they compensated?

First, a quick history lesson. During the early days of the internet, people would use punctuation keys to create emoji (and sometimes still do).

Pictorial emoji – the earliest versions of the images we see today – were introduced in 1999 for the Japanese mobile network NTT DoCoMo. As users sent them back and forth to each other, they became a huge hit, and other mobile carriers started introducing them.

The problem was that each company that developed their emoji according to their own standards. This meant that if you sent an emoji from your phone to a recipient who was on a different mobile network, they may see something completely different than what you’d intended.

The Unicode Consortium addressed the issue in 2010 when it designated 78 emoji as the standard for everyone (many more have been added since). Today, when you send an emoji between mobile networks, you can be sure the person on the other end is seeing what you intended, though there still can be some differences.

Certain emoji are recognizably Apple emoji, recognizably Google’s version, and so forth. For example, you can see the nuances of different companies’ “face with rolling eyes” and “sad but relieved face” in Unicode Consortium’s Full Emoji List.

Keep in mind that emoji consist of computer code. All the companies use the same code to create, say, their grinning face emoji. The subtle differences in how they all look on the screen or page are what makes them copyrightable, to the extent they are.

So every mobile carrier owns their own emoji. This means you’re not supposed to use them for other purposes – like printing them on a mug or pillow, or using them as part of your own communications service. You’d want to use open source or free-license emoji for that sort of thing instead.

Having said that, any copyright protection for emoji is likely to be slim, given that they’re all derivative works of the same computer code. It’s difficult to know for certain how a court would rule, as there haven’t been any major cases about emoji and copyright infringement… yet.

Do You Have Questions About Copyright or Other Intellectual Property Rights?

Our firm focuses on intellectual property and entertainment law, including copyright, and would be happy to discuss your matter with you. Contact us at (561) 953-9300 or contact us online to schedule your free consultation.

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