Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

The conflict of laws has often resulted in interesting dilemmas for courts where precedent cannot be readily applied, necessitating a case-by-case approach. The United States Court of Appeals for the Ninth Circuit a that held a French court’s ruling was unenforceable due to a conflict in copyright laws between the countries.

Background

The case between De Fontbrune and Alan Wofsy regarding photographs of Picasso’s paintings dates to 1991. taken by Christian Zervos, with added creative elements through deliberate choices of lighting, lens filters and framing, were published in Zervos Catalogue in 1932. In 1979, the rights to the publication were acquired by De Fontbrune. In 1991, Wofsy, with , published De Fontrbrune’s images in “The Picasso Project”. De Fontbrune held the position that the to approve such use. , in 1998, the police confiscated copies of Wofsy’s book, and De Fontbrune sued for copyright infringement.

In 1998, the French courts ruled that the photographs were used for , and thus were not entitled to copyright protection. This, however, was in 2001 with a ruling against Wofsy, who became responsible for . The appellate court agreed that Zervos’ photographs were protected by copyright, as it involved sufficient creativity. ��Wofsy appealed to the French Civil Supreme Court, but his case the damages owed to De Fontbrune.

In 2011, to enforce the decision in the States, De Fontbrune brought the case to California who . The District Court held that the French decision infringed Wofsy’s freedom of speech and that Wofsy’s books are “ and that astreinte (monetary damages for copyright infringement) do not apply because of the US’s fair use doctrine. The plaintiffs argued that the book has a commercial purpose, which weighs against fair use. The District Court held that such nature of use does not create a presumption against fair use for public policy reasons. The US’s disregard of another country’s ruling ��indicated that the court found it “repugnant” to domestic law.

Appeal

De Fontbrune the District Court’s holding — one that rejected the French judgement. The appellate court, the Ninth Circuit, noted that there is a high bar for repugnancy, and that a mere conflict of laws is insufficient to meet it. Further, the judgment must be to recognize standards of morality and the general interests of the citizens. The Ninth Circuit also notedd that the French judgment is identified under the California Recognition Act.

The Ninth Circuit that the book ��was non-infringing for the purposes of — that is, the Court does not consider it to be “criticism, comment, news reporting, teaching, scholarship, or research purposes.” ��Rather, the Court held that the use was infringing because it is simply a and the one that could rebalance fair use in Wofsy’s favour.

The Ninth Circuit used the following four fair use factors to reach their conclusion:

• the purpose and character of use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used; and
• the effect on potential market or value of the copyrighted work

The Court had doubts whether Wofsy could use the fair use defence in the States and thus the inability to use the defence under French law was not in “.”

The discrepancy between the decisions of the District Court and Appellate Court may have stemmed from the subjective methodology of the judges of balancing the copyright laws and fair use defence scope with First Amendment freedom of speech rights. Nevertheless, the fair use defence remains a gamble for artists and creatives.

On December 2, 2022, counsel for Wofsy for a Writ of Certiorari —judicial review— to the Supreme Court of the United States.

The post Photographs Taken 91 Years Ago Still in Conflict Today appeared first on IPOsgoode.

Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

At last, the on the protectability of the subjects of ‘pop art’. In 1984, Vanity Fair magazine received a licence from photographer Lynn Goldsmith to use her 1981 portrait of Prince, which she had shot on assignment for Newsweek. Fast forward to 2017, when Vanity Fair published a special issue to pay homage to the recently deceased musician that featured ‘Orange Prince’ – Andy Warhol’s pop art depiction of Goldsmith’s photograph. The question of whether Warhol’s Prince silkscreens may be considered fair use has now made its way up to the US Supreme Court, and on October 12th of this year, . This is the outlining the arguments that were made in the matter of Andy Warhol Foundation for the Arts v Goldsmith.

In determining fair use according to the statute, one of the primary points of contention involved the meaning behind the of the alleged use. The Warhol Foundation contended that the purpose of ‘Orange Prince’ was to comment on modern society, thereby conveying unto the original an entirely different meaning and message. Lisa Blatt, representing Goldsmith, proposed that one may just as easily argue that the “purpose” of both uses was the commercial licensing of the works for publication. Blatt’s arguments were supported by Yaira Dubin, representing the Justice Department, who also highlighted the foundation’s commercial licensing of Warhol’s work, saying that “using another artist’s work as a starting point to turn around and compete directly with their original has never been considered fair.”

Of course, the magnitude of such a household name as Andy Warhol’s was not lost to the court. Justice Kagan questioned the influence such a name might have on the query: “Now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it’s easy to say that there’s something importantly new in what he did with this image.” On the other hand, Justice Kagan also acknowledged that there must be a reason why Warhol’s art is hung up on the walls of museums: “[W]hy do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he made them mean something completely different.”��

The Supreme Court judges addressed a statement made by the , which ruled in favour of Goldsmith. The Court of Appeals had warned that judges “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Justice Alito, in particular, seemed to disagree with the statement, pondering the kind of perspective that would be appropriate in determining such distinctions: “Well, suppose that [somebody]...made an almost exact copy [of the Mona Lisa]…If you showed [the two works] to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?...But, if you called somebody who knows something about Renaissance art, the person would say that makes a big difference.”

The commentary strikes at the ambiguity often found in determining cases involving intellectual property, if only because there is an inherently subjective element to construing creations of the mind. However, though patent law has the “person of ordinary skill in the art” standard and trademark law has the “ordinary casual consumer somewhat in a hurry” standard, copyright law often relies on a judge’s evaluation of whether infringement has occurred.

There is much to be anticipated from the Supreme Court’s final decision, the kind of effect such a decision might have on the world of art and photography, as well as whether a ruling in favour of the foundation would indeed “decimate the art of photography by destroying the incentive to create the art in the first place,” as Blatt argues.

The post Warhol’s ‘Orange Prince’ Brought to Court: Part 2 (Arguments from Lynn Goldsmith) appeared first on IPOsgoode.

Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative , , and of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas in the Israeli Conservatory: Dean Zemer’s “own little victory.” ��

The post Bracing for Impact Keynote Address Tells a Copyright Story Never Told: Art and Copyright in Ghettos and Concentration Camps appeared first on IPOsgoode.

Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Over 3 years have passed since New York’s District Court a ruling in the matter of Andy Warhol’s “Orange Prince”, and the ripples of the case have finally made their way up to the Supreme Court. On Wednesday, October 12th, 2022, the judges of the US Supreme Court heard from both sides, and considered whether Warhol’s , which he had based on a 1981 photograph of Prince by photographer Lynn Goldsmith, may be considered a use that is “fair”.��

The doctrine of fair dealing in Canada has long played an important role in balancing the scales of copyright law from leaning too far in favour of copyright holders. The fair dealing exceptions recognize certain uses of protected works as benefitting society, and thereby safeguard those uses from findings of infringement. The parallel doctrine in the US tracks along similar reasoning and is known as the ‘fair use’ doctrine. In determining whether a use of a copyrighted work is “fair,” courts consider numerous factors, including whether the use in question is “transformative” of the original material.

In , the Supreme Court was invited to assess whether a work was “transformative” when it conveys a different meaning or message from its source material, or whether, in cases where the accused work “recognizably derives” from its source material, judges are forbidden from deriving or considering such meanings. It was an engaging proceeding with an abundance of references to pop culture icons and current affairs, and was punctuated at times by laughter in the courtroom at an amusing hypothetical posited by one of the judges.����

Roman Martinez appeared on behalf of the Andy Warhol Foundation, and clarified the issue at hand, as well as the Foundation’s position: “[b]oth courts below agreed, and Goldsmith doesn’t dispute, that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes.” Martinez argued that while Goldsmith’s original photograph captured a “vulnerable-looking Prince,” Warhol’s depiction turned it into a commentary on celebrity and fame – an entirely different meaning and message.��

The judges somewhat pushed back against this argument. Justice Elena Kagan suggested that in Hollywood, while a movie adaptation of a book might introduce plenty of new elements that may make a derivative work “transformative” under Martinez’s proposed test (“...new dialogue, sometimes new plot points, new settings, new characters, new themes”), one would still expect some sort of licensing agreement to be required.

Chief Justice John Roberts and Justice Clarence Thomas also commented on Martinez’s arguments, albeit in more lighthearted terms. The Chief Justice wondered whether a claimant who depicted Prince with “a little smile on his face” may advance the argument that the “meaning or message” of the work was fundamentally changed to convey that “Prince can be happy” or that “Prince should be happy.” Justice Thomas in turn asked Martinez to imagine the Justice at a Syracuse football game as a Prince fan, “which [he] was in the ‘80s.” Justice Kagan interjected, “No longer?,” to which Justice Thomas replied, “Well…so only on Thursday night.” This elicited some laughter in the courtroom. Justice Thomas continued, “And I decide to make one of those big blowup posters of ‘Orange Prince’ and change the colours a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me for infringement?,” insinuating that the changes and add-ons may be considered to convey a new “message” to Warhol’s work, under the Foundation’s proposed test. In response, Martinez emphasized that the verdict in both scenarios would largely depend on the degree of transformation in meaning or message, as well as the other factors in the ‘fair use’ analysis, such that a holistic assessment may be applied.

The post Warhol’s ‘Orange Prince’ Brought to Court: Part 1 (Arguments from the Andy Warhol Foundation) appeared first on IPOsgoode.

Michelle Mao is a 2L student at Osgoode Hall Law School and an IPilogue Writer.

In response to a , where the musical’s contents were , Lin-Manuel Miranda, creator of the Hamilton musical tweets, So, what exactly does this “work” entail?

, The Door, a church in McAllen, Texas live-streamed their production of Hamilton with modified lyrics to reference Jesus and added a scene where Alexander Hamilton repents. The production ends with a sermon helping those who were struggling with drugs, addiction, and most controversially, homosexuality. The copyright issues that exist in this situation include: unauthorized streaming, unauthorized use of Hamilton content, unauthorized alterations to Hamilton content, and an infringement of an artist’s “moral right” to their copyrighted work.��

Lin-Manuel Miranda’s lawyers can consider several measures to protect his intellectual property. First, Hamilton the Musical did not grant performers rights to use its unique content and had only granted licensing to touring companies to perform the musical in various cities around the world. Given that The Door McAllen Church is not a touring company, they had not been previously granted rights to perform and live-stream, much less alter the contents of Hamilton the Musical.��

There is, however, an added layer of complexity for Lin-Manuel Miranda’s lawyers in this case. As religious institutions, from typical copyright protections called the . Therefore, performance or display of a copyrighted work at a religious institution is allowed, such as the performance of a hymn. This exemption, however, still does not grant churches the freedom to alter copyrighted work, such as changing the lyrics of a copyrighted song.��

An interesting argument Lin-Manuel Miranda’s lawyers can make is to claim Lin-Manuel's moral rights claim to his copyrighted work. to prevent the alteration and/or distortion of their work regardless of who the copyright owner is. The purpose of this right is to protect the reputations of authors and to prevent the destruction of unique works. The moral rights argument can be very strong in this case, given the progressive message that Hamilton the Musical stands for, with its casting of people-of-colour to portray an era dominated by colonization and white settlers. It is not hard to see how altering Hamilton the Musical, which has been hailed as an iconic piece subverting oppression, to promote certain Christian values and condemn homosexuality would severely damage Lin-Manuel Miranda’s reputation.��

This problem of copyright, fair use, and moral rights, in this case, is an interesting one, where the non-profit and fair use angles of church and religion and moral rights are evaluated within overlapping legal principles. While most present-day people would view The Door McAllen Church’s condemnation of homosexuality as oppressive, the tension between an author’s moral values and rights against fair use and religious use will prompt future discussions of racism, religious freedom, and individual freedoms.��

, the dispute between Hamilton the Musical and The Door McAllen Church has been settled by The Door McAllen Church paying an undisclosed amount of damages which the Hamilton team has since to an LGBTQ-rights organization. While it is unclear which argument Lin-Manuel's legal team took to achieve this outcome, he undoubtedly had a strong copyright claim against The Door McAllen Church’s unauthorized usage of Hamilton content.��

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Last year, Andy Warhol lost an infamous copyright infringement lawsuit against photographer Lynn Goldsmith regarding an image of the pop singer Prince. ��The focus of the conflict was the meaning of “transformative works” in the U.S. Copyright Act—whether Warhol’s print is transformative of the original photograph so that it qualifies as fair use. Both the and the ����considered aesthetic characteristics of the two pieces, but such analysis seems to miss the point. As an avant-guard artist of his time, Warhol used the mechanical process of copying to challenge the conventional notion of art. It also engaged critically with rising capitalist culture and pop culture in post-war America. In this sense, the act of copying is the very medium of Warhol’s art.

There seems to have always been tension between artistic creativity and copyright law. Copyright, in the simplest terms, is “.” It protects the authors’ exclusive rights to reproduce and publish their creations. Artists, however, have long been engaging in deliberate and publicized copying as a form of artistic expression. The belongs to the long tradition of modernist art that questions the nature and definition of art itself. Terms like “ready-made” and “appropriation” appear in any introductory course to contemporary art. Besides Andy Warhol, other famous contemporary artists like and have also faced copyright claims. To many artists, copying is of critical artistic value because the action “” and “” of art. Yet the current law of copyright cannot fully accommodate the sophisticated theories of contemporary art.

New technologies, such as virtual reality (“VR”) and augmented reality (“AR”) further complicate things. Because of pandemic restrictions, many museums and galleries now rely on new media technology to attract audiences. The blockbuster Leonardo da Vinci at the Louvre, Mona Lisa: Beyond the Glass, gave viewers an interactive VR experience to explore the painting and its context. In other cases, museums invited artists to create derivative works based on museum collections. For instance, the National Museum of Singapore invited the Japanese art collective, teamLab, to create an using visual motifs from the museum collection. Similarly, Art Gallery of Ontario invited digital artist Alex Mayhew to create of the old paintings collected by the museum using AR technology. Exhibitions like these provide audiences with refreshing experiences, but they also require museums to exercise and navigate the legal problems.

The power and resources enjoyed by large art institutions do not go unchallenged. In 2019, a group of renegade artists developed an app called that mocked the iconic paintings by Jackson Pollock at the Museum of Modern Art (MoMA) in New York. Viewed through the app, Pollock’s paintings are either retouched or entirely replaced. The purpose of the artwork was to call attention to the power hierarchy and elitism in the art world. Although MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are and technically could give rise to an infringement claim. It would be interesting to see how copyright law would deal with artistic creations that were meant to be offensive or even illegal. ��

The authoritative nature of law seems to go against the inclination of art to break rules and challenge conventions. The law of “,” or “ in Canada, cannot satisfactorily address the questions raised by the changing practices of contemporary art. Luckily, the Supreme Court of the United States will further develop the law as it had decided to the dispute between Warhol and Goldsmith.

The post Why do artists infringe copyright – the tension between artistic creativity and copyright law appeared first on IPOsgoode.

Photo by Prof. Pina D'Agostino

Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

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For fifty years, the Copyright Society of the USA (CSUSA) has invited numerous esteemed figures to present the annual . This past Monday, Osgoode’s very own Professor David Vaver delivered the 2021 Brace lecture on “User Rights: Fair Use and Beyond” as the series’ very first international speaker from outside the United States. Professor Vaver spoke on the origins of fair dealing in Canada and its differences and similarities in comparison to the American legal concept of “fair use”, its evolution throughout the history of Canadian common law jurisprudence, and its potentially far-reaching future beyond Canada and copyright law.��

Professor Vaver opened his lecture by introducing Jack McClenaghan’s novel Moving Target[1], a man-on-the-run thriller set in New Zealand during World War II that follows an army deserter as he is hunted by the military. Similarly, the boundary between copyright and user rights can also be likened to a “moving target” – elusive, ever-evolving, and always open to debate. And like McClenaghan’s fictional account of militant pursuit, the history of tension between copyright and user rights has been a tale of survival on the part of both.��

“Fair dealing” in Canada is a statutory exception to copyright infringement, and has been “as an integral part of the Copyright Act [and more] than simply a defence”. The Court refers to it more specifically as a “user’s right”. However, fair dealing’s designation as an “exception” inherently produces a negative implication: that copyright law is the “natural order” of things. That anyone’s use of a copyright-protected work infringes the copyright owner’s property. That any deviation from that rule must be an “exception”.��

However, the history of copyright law has always read quite differently. Up until the 20th century, , the public had relatively free reign and plenty of rights to use and to benefit from the circulation of works at the time. However, over the course of the 20th and 21st centuries, the island of copyright law that once stood amidst a sea of user rights began to expand, and as the sea around it shrank, the two eventually seemed to switch in character altogether.��

It wasn’t until the late 1900s that courts in the UK began to recognize a problem with the tendency towards legal copyright. In , the Church of Scientology sued a former member for publishing a book criticizing Scientology that contained material copied from Scientology books and documents, as well as confidential information pertaining to Scientology courses. The Court of Appeal unanimously held that the scope and content of the fair dealing defence should include works of criticism. Along a similar vein in the US, Professor L. Ray Patterson and Judge Stanley F. Birch argued in their 1996 article that “the subject matter of copyright is information and learning, which implicates the right of citizens to know. This right is protected by both the First Amendment and the copyright clause”.��

Over time, Canadian courts also began to increasingly recognize the need for a careful balancing act to weigh the rights of copyright owners against those of the public. In , the court noted that “[t]he Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator...In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.” Professor Vaver also credited Chief Justice McLachlin (as she then was) and Justice Abella for influencing this trajectory in Canadian copyright jurisprudence, as reflected by their rulings in more recent copyright law cases such as , in which the Court unanimously held that the Law Society’s practice of providing photocopy services to researchers fell within the ambit of fair dealing, and , in which the use of previews of musical works on online music services was also considered to be fair dealing.��

In conclusion, Professor Vaver invited listeners to consider how the idea of user rights may extend beyond the concept of fair dealing as a legal defence, perhaps beyond copyright law, or even beyond Canadian borders. In quoting from his own 2013 article “[J]urisdictions that view copyright's primary purpose as - to quote Nimmer - ‘not to reward the author but rather to secure the general benefits derived by the public from the labors of authors’ may find user rights a concept worth considering for their copyright law. And, while one is at it, why not for all intellectual property laws?”

[1] Jack McClenaghan, Moving Target (Gollancz, 1966).

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Photo by Intepat ()

Tianchu��Gao is an��IPilogue��Writer and a 1L JD Candidate at��Osgoode��Hall Law School.��

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The decade-long dispute between Google and Oracle over computer code’s copyrightability finally came to an end on April 5, 2021. It started out in 2010 when Oracle sued Google for copying the ��of��Java, a programming language developed and licensed by Sun Microsystems��and��later��acquired by Oracle, in��Google’s��development of��the����operating system. The fight between the two tech giants, with��billions of��dollars at stake,��attracted��significant����and��.��Many��academics, businesses,��and computer professionals����for��Google before the case was heard at the��U.S.��Supreme Court��on��October 7, 2020.��The����bears great weight in shaping the development of the IT industry and��U.S.��copyright law. It is arguably, as Stanford law professor Mark Lemley coined it, “”����

The case��meandered��through��constant reversals of judicial judgements.��It is composed of two phases centering on two legal issues that were trialed separately—the��copyrightability of APIs��and��the��.��In the first phase, the�� that Oracle’s APIs functioned somewhat like a “system or method of operation” which could be implemented in various ways and, on the facts of the case, Google’s use of them was permitted under the��Copyright Act.��The����and claimed that��“the overall��structure of Oracle's API packages is creative, original, and��‘resembles a taxonomy’.”��It also��ordered��a second��trial��to determine��whether Google’s use of Java��API��was��acceptable under the fair use��doctrine. In��the��, the jury voted��in��favour��of��non-infringement��on the ground that��Google’s use��was��fair.��Oracle appealed successfully. The�� that Google’s use of Java API is a non-transformative use, with transformativeness being a requirement for finding fair use, and that it has profited commercially from Android. As expected, Google was unhappy with the outcome and appealed again. ��

Finally, with the support of��s from the Solicitor General of the United States and numerous other professionals,��the Supreme Court��made a�� that is more in tune with the context of programming and the IT industry. The majority opinion held that, although API is copyrightable, Google’s use of Java API is within the bounds of fair use. It highlighted the distinction between declaring code and implementing code—the former proposes a hypothetical function that serves a particular objective, and the latter is the actual realization of that hypothesis. According to the Supreme Court, Java API is essentially a set of declaring code that resolves general task division and organization. It enables programmers to “ The very creativity that contributes to technological breakthroughs lies in implementation rather than merely declaring code. It is in Google’s interest to use Java APIs, rather than developing its own, because programmers have already invested time and effort to learn them. Google wanted to attract as many programmers as possible to develop smartphone apps on Android, thereby furthering copyright’s creativity objectives. In addition, Breyer J. ruled that Google’s use is “minimal,” about 0.4 percent of the total Java source code, and it does not diminish Java’s marketability since Android is used in different platforms (i.e., smartphones).����

While��some��are����about the chilling effect��that��the decision��may have on programming innovations,��professionals have�� it. It accords with the�� that programmers rely on to pursue innovations. It also marks an important accommodation made in copyright law to face the new challenges posed by the booming IT industry.����

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Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

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Complex Magazine and Sports Illustrated reported that a New York copyright attorney filed a lawsuit against James on behalf of Steve Mitchell, who took a picture of James dunking during the LA Lakers vs. Miami Heat game on December 13^th, 2019. The following day, James posted a cropped version of the picture on his social media accounts, resulting in the aforementioned lawsuit.

Mitchell’s attorneys are arguing that the fact that James is the focus in the photo does not preclude him from seeking permission to publish the photo. As the owner, Mitchell argues that his copyright has been violated since no contractual agreement was reached between himself, James, and/or the Lakers. Mitchell is seeking damages of up to $150,000 per infringement.

James has been known to repost images from various fans on his account in the past, and as such, fans may be of the view that commencing legal action on these grounds is excessive on Mitchell’s part, as many photographers in the past have settled for the bragging rights. As a seasoned photojournalist whose work has appeared in major publications including ESPN and Sports Illustrated, Steve Mitchell is not likely interested in bragging rights. Mitchell is in the business of licensing his photos to online and print media for a fee, which provides context into the seriousness of the infringement from his perspective.

The essential rules of copyright law would deem Mitchell to possess copyrights in his creative works, absent a contractual relationship that says otherwise. The fact that Mitchell is a credentialed photojournalist that works closely with the NBA would likely only strengthen his claim. 

The complaint further demonstrates that Mitchell registered the photo with the U.S. Copyright office. This is not a necessary step to secure a copyright in a work, as a copyright exists from the moment the work is created and fixed in a tangible form. Despite this, registration allows for additional legal protections, including, the ability to sue for infringement.

The Doctrine of Fair Use

The fair use doctrine, initially a common law creation, was later codified in of the (the Act). It is considered an “”, meaning that courts do not employ a bright line test, but rather, weigh all the relevant facts on a case-by-case basis. The Act provides a non-exhaustive list of factors a court should consider. These include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyright protected work; (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole; and (4) the effect of the use upon the potential market for or value of the copyright protected work.

It likely will not be difficult for the judges to conclude that an infringement occurred, however, James’ attorneys will likely seek a potential defense under the fair use doctrine.

(1) The Purpose and Character of the Use

The purpose of the post arguably was to celebrate the dunk and pay homage to the time James spent playing for Miami, prior to playing for his current team. The fact that the post is freely available, and James is not profiting from the post might also be favorable for James. His attorneys will likely argue that there was no intent to profit from this post. Despite this reality, the fact remains that James’ pages are highly commercial, and these posts contribute to the commercial success of his brand. 

(2) The Nature of the Copyright Protected Work

In terms of the nature of the work, James’ attorneys might argue that there is nothing imaginative or unique about the photo, as it is James dunking a basketball – something he has been known to do a lot of over the years. On the other side, Mitchell’s lawyers could construct a range of arguments to try and rebut this claim. Bolstering an argument around Mitchell’s background as an established photographer with a history of licensed and protected work would be a potentially viable avenue.

(4) The Effect of the Use upon the Potential Market

Market impact will likely be one of the major factors discussed if a fair use argument is raised. From Mitchell’s perspective, his attorneys could argue that James’ post diminishes the value of the original photo. The fact that James’ photo can be easily reproduced is detrimental to the process Mitchell underwent initially, to register and protect his photograph. From a market perspective, time is of the essence, as increased popularity for James’ photo has the potential of further diminishing the value of Mitchell’s photograph. However, in an environment where a signature can , perhaps commencing legal action against one of the most popular athletes on the planet will have the opposite effect.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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