Having never dealt with motion capture libraries, I can't tell you for certain. The choreography contained [if quite basic] may not be copyrighted while the computer code recording those motions might be (since computer programs are considered literary works under the Copyright Act), but without more research, that's just speculation on my part. Keep in mind that a single work can involve multiple potential copyrights (like a movie having audiovisual protection while its underlying script has literary protection).
Application of 505 is basically in the court's discretion. I don't have statistics in front of me, but I've seen grants of it justified almost solely on the basis of the beneficiary's victory furthering the purposes of the Copyright Act.
Technically, it's a five-part test, at least here in the Ninth Circuit, looking at (1) the degree of success obtained; (2) frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party's factual and legal arguments; and (5) the need, in particular circumstances, to advance considerations of compensation and deterrence.
In a case I recently worked on, the judge found that the losing party brought his case in good faith, but that his claim was objectively unreasonable (despite some precedent arguably supporting his position and a very similar case a few years back denying a 505 award). He got hit with nearly half a million bucks in fees and costs. In theory, rulings like that one should be a pretty strong deterrent for flimsy claims, but I still see plenty of pro se or judgment-proof plaintiffs rolling the dice anyway.
I remember hearing someone propose that plaintiffs should be required to post bond in anticipation of potential fee awards -- now that would free up a decent amount of space on the court dockets...
Funny, I run into cases all the time where judges use the idea/expression dichotomy to toss out comparisons between works, including cases I've worked on. It's dicier with software, but that's because copyright protection for software is more recent than for classic subject matter [books, movies, etc] and the courts are struggling with their analyses as such -- I wouldn't be so quick to label the entire dichotomy as irrelevant on that basis. And the whole scenes a faire/stock element doctrine [which is used just as heavily as the idea/expression dichotomy in the cases I deal with] is essentially a variation on the merger doctrine. So I think you're being a little hyperbolic.
Well, let's not take it to unrealistic extremes; trademark law is quite mindful of exhaustion issues, even as they approve of theoretically scarce marks (see the discussion of "color depletion" in Qualitex). Rather than exhaustion, publicity rights are more about mere overreach. The whole scheme is a kind of quasi-IP borne of entitlement rather than incentive [they don't really "promote the progress" by most yardsticks] that states are still feeling out; I'm sure they'll eventually expand too far and require a judicial pin-prick to deflate. Until then, we have to just fight to contain them.
You do know that your argument, while generous on rhetoric, is full of fallacies and misnomers? Yes, society advanced before copyright -- and after. I believe the automobile, television, and computer all post-date copyright law. Fire and math are products of nature and not subject to copyright. And someone can steal your idea without violating copyright -- copyright law only protects a particularized expression of an idea, and only if the idea is variable enough to lend itself to many expressions, and only if that particular expression isn't a typical one, and only if actual copying took place, and only if the copying entails a substantial portion of the expression was appropriated. Most of the time, you seem to be conflating copyright and patent law in your argument. I would suggest you take time to research the thing you seem to be so dead-set against, at least enough to actually be talking about it when you think you're talking about it.
Except the poses have to relate to artistic choreography, and there ain't nothing artistic about straight-up walking. I discussed earlier how copyrighted subject matter must contain a creative spark, and so elements of a claimed work that are either too mundane or typical within a class of work can never be copyrighted. So if you're aiming to copyright a series of poses, they'd better be very interesting poses, and you'd better have enough of them in a specific sequence to form a concrete pattern deserving of artistic protection. And even then, given the nature of the subject matter, the copyright would likely be "thin" [meaning only virtual or exact replication would violate it].
Copyright may seem ridiculous at times to those not schooled in it [and, admittedly, is sometimes ridiculous even to the legally learned], but there are many safeguards in place to try and prevent the truly ridiculous outcomes from ever manifesting.
Unfortunately, enough people got together and convinced various law-making bodies that a celebrity's persona is a property interest that they work to cultivate, and that they should be able to pass such property down to their next of kin as inheritance. Because apparently the media they appear in (on top of actual money and typical property passed down) isn't quite enough to sustain their brood.
Except nobody would suggest something so basic as a single pose is copyrightable (though believe me, many a yoga instructor wishes it was). Rather, a similar pose, combined with numerous other expressive elements, may be creative enough to be copyrightable. But courts also look to the frequency with which similar expressions appear within a medium to decide whether they deserve copyright. For example, a shootout in a saloon is a stock elements of spaghetti westerns and would not be infringed upon by future films employing such tropes. Thus, simple poses used often in professional photography would not be copyrightable. And, of course, independent creation is a complete defense regardless of copyrightability if the plaintiff can't prove the defendant ever saw their work [absent some very striking similarities that make denial of access to the plaintiff's work literally unbelievable].
Damnit. I need to start previewing my comments more frequently before I hit the Submit button. Let me fix that last paragraph:
It helps to remember that copyright protects artistic creations; that is to say, things that originate with the author. When the copyrightability of photographs was first being debated, people asked themselves, what in a photograph does an artist create? He's merely capturing reality that has been created independently of himself. But in Burrow-Giles v. Sarony, the Supreme Court finally explained what the artist "creates" in a photograph: rendition of the scene, from selecting wardrobes to posing subjects to arranging backdrops to framing the shot's angle, cropping, light and shadow, etc. Theoretically, those elements can work together to create a copyrightable whole, which can be infringed without duplicating the exact photo. And, as always, a court's challenge is to draw a line between what selection of elements is concrete enough to be copyrightable, depending on how closely they're copied from one photograph to another (and, of course, how unique the elements are -- typical or stock elements that appear frequently in the medium are dismissed as non-copyrightable).
Yes, similarity is potentially infringing. That's why the threshold for infringement is not "virtual identity," but rather "substantial similarity." For example, in Gross v. Seligman, an artist was found to have essentially infringed against his own photograph. He took a picture of a girl, sold the rights in that photo, then later took another picture of the girl in the same pose and style as the original, albeit older (and I believe with the addition of a cherry stem in her teeth). The court held as follows:
The identity of the artist and the many close identities of pose, light, and shade, etc., indicate very strongly that the first picture was used to produce the second. Whether the model in the second case was posed, and light and shade, etc., arranged with a copy of the first photograph physically present before the artist's eyes, or whether his mental reproduction of the exact combination he had already once effected was so clear and vivid that he did not need the physical reproduction of it, seems to us immaterial. The one thing, viz., the exercise of artistic talent, which made the first photographic picture a subject of copyright, has been used not to produce another picture, but to duplicate the original.
You can take a picture that's identical to hers, so long as you didn't see hers first. And even if you did see hers first, you're fine if your photo doesn't replicate enough of the copyrightable aspects in hers to count as infringing; things like pose, framing, angle, lighting, and of course the content itself. Enough elements of the original photo must be copyrightable that replication of those elements is copyright infringement [and again, such replication must have been done with access to the original]. Considering how basic the similarities in these photos are [and how different they are otherwise], the plaintiff never had a chance, and it's pretty shocking that any lawyer agreed to take it on.
I'm not entirely sure about that. Doesn't national treatment only necessitate that you don't accord lesser protection to foreign works? Technically, making the first sale doctrine only applicable to native works grants foreign copyright holders greater control over their works.
I think the line from the original post is a misstatement -- a work produced outside the US still gets protection against infringement if produced by a nation signed to one of the same international copyright agreements that were are, such as Berne or TRIPS. But not all the provisions of a member nation's copyright laws must be applied to those works, and that's essentially what the court is saying here. They look at the first sale doctrine and the importation restrictions of the Copyright Act in tandem and conclude that the latter would be near-irrelevant if the former would to apply to foreign-produced works, that Congress did not likely intend such an outcome, and they must thus refrain from creating such an outcome [as courts before them have avoided].
True, region locking is a market solution rather than a legal one, but as you said, that's not easily applied to books; you mention the linguistic option, but that doesn't seem feasible when multiple regions share the same language.
But more to the point, if they can sell a book at a profit at a lower price that only shows how overpriced it is in other markets.
But what if the only reason they can sell it at that low price is because the higher prices in other territories make up for the difference? You definitely have a point in that there's a market problem if they're offering a more affordably produced product in one market and not another, but when it's the same product in each market, it seems like they're screwed either way: if they offer a lower price in one market but not another, they incentivize bleeding imports [absent legal restrictions] and hurt their bottom lines. If they keep prices equal across the board, they either operate at a loss or inhibit the ability of poorer nations to afford their works.
Don't get me wrong, as a law student, I abhor the rates that many textbooks go for and fully take advantage of the first sale doctrine -- almost all my books for the upcoming semester were purchased secondhand. But those were books offered to this economy with full knowledge of the first-sale doctrine's reach. As the court in this case noted, copyright law is structured with a tension between the first sale doctrine and importation restrictions; an expansive reading of the former would relegate the latter to near uselessness, and it's doubtful that Congress would have passed both provisions into law with that outcome in mind. The dissent's reading of the relevant language in the first sale doctrine is very reasonable in isolation, but less so in light of prior case law, coexisting statutory law, and arguably some policy considerations as well. Congress should definitely do something to clarify the issue, though, as Mike's discussion brings up numerous legitimate concerns.
I find there's an interesting tension between two goals that are regularly championed here on Techdirt: adapting to market realities and trying not to restrict the free flow of commerce. On the one hand, we have research like the SSRC report that shows infringement is often a market issue rather than a legal one, in part due to the fact that foreign consumers often cannot afford media at the prices that companies wish to charge. On the other hand, we have outrage over companies using copyright law to subvert the free market by doing things like stripping away the first sale doctrine as to foreign produced goods. Yet the ability of companies to control the flow of copyrighted goods between territories is likely what would enable them to use variable pricing between markets in the first place. After all, if anyone can import and resell goods purchased in a territory of lowest cost, then manufacturers have no incentive to offer variable pricing, since they'll only undercut their own sales everywhere outside the territory of lowest price. I'm interested to hear how companies can try to adhere to both the aforementioned principles [which I actually believe are laudable ones] without shooting themselves in the foot.
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Technically, it's a five-part test, at least here in the Ninth Circuit, looking at (1) the degree of success obtained; (2) frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party's factual and legal arguments; and (5) the need, in particular circumstances, to advance considerations of compensation and deterrence.
In a case I recently worked on, the judge found that the losing party brought his case in good faith, but that his claim was objectively unreasonable (despite some precedent arguably supporting his position and a very similar case a few years back denying a 505 award). He got hit with nearly half a million bucks in fees and costs. In theory, rulings like that one should be a pretty strong deterrent for flimsy claims, but I still see plenty of pro se or judgment-proof plaintiffs rolling the dice anyway.
I remember hearing someone propose that plaintiffs should be required to post bond in anticipation of potential fee awards -- now that would free up a decent amount of space on the court dockets...
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
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Copyright may seem ridiculous at times to those not schooled in it [and, admittedly, is sometimes ridiculous even to the legally learned], but there are many safeguards in place to try and prevent the truly ridiculous outcomes from ever manifesting.
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
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On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: What copyright means
It helps to remember that copyright protects artistic creations; that is to say, things that originate with the author. When the copyrightability of photographs was first being debated, people asked themselves, what in a photograph does an artist create? He's merely capturing reality that has been created independently of himself. But in , the Supreme Court finally explained what the artist "creates" in a photograph: rendition of the scene, from selecting wardrobes to posing subjects to arranging backdrops to framing the shot's angle, cropping, light and shadow, etc. Theoretically, those elements can work together to create a copyrightable whole, which can be infringed without duplicating the exact photo. And, as always, a court's challenge is to draw a line between what selection of elements is concrete enough to be copyrightable, depending on how closely they're copied from one photograph to another (and, of course, how unique the elements are -- typical or stock elements that appear frequently in the medium are dismissed as non-copyrightable).
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But more to the point, if they can sell a book at a profit at a lower price that only shows how overpriced it is in other markets.
But what if the only reason they can sell it at that low price is because the higher prices in other territories make up for the difference? You definitely have a point in that there's a market problem if they're offering a more affordably produced product in one market and not another, but when it's the same product in each market, it seems like they're screwed either way: if they offer a lower price in one market but not another, they incentivize bleeding imports [absent legal restrictions] and hurt their bottom lines. If they keep prices equal across the board, they either operate at a loss or inhibit the ability of poorer nations to afford their works.
Don't get me wrong, as a law student, I abhor the rates that many textbooks go for and fully take advantage of the first sale doctrine -- almost all my books for the upcoming semester were purchased secondhand. But those were books offered to this economy with full knowledge of the first-sale doctrine's reach. As the court in this case noted, copyright law is structured with a tension between the first sale doctrine and importation restrictions; an expansive reading of the former would relegate the latter to near uselessness, and it's doubtful that Congress would have passed both provisions into law with that outcome in mind. The dissent's reading of the relevant language in the first sale doctrine is very reasonable in isolation, but less so in light of prior case law, coexisting statutory law, and arguably some policy considerations as well. Congress should definitely do something to clarify the issue, though, as Mike's discussion brings up numerous legitimate concerns.
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Re: First Music, then Movies, now Books
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