Maybe it was in celebration of International Happiness Day, or maybe it was just coincidence, but this week saw three high-profile copyright cases all resolved through out-of-court settlements.
First, upstart toy company GoldieBlox settled with Beastie Boys over the unauthorized use of a version of the Beasties song “Girls” with altered lyrics in an online ad video. As we reported in December, the case was framed initially as a question of whether the video qualified as fair use, but it also raised issues of trademark infringement, false endorsement, unfair competition, and misappropriation of publicity rights. In the end, the Beasties got what The Hollywood Reporter originally reported that they were after: a donation by Goldieblox to a charity of the Beasties’ choice, based on a percentage of revenue, and a more substantive apology:
We sincerely apologize for any negative impact our actions have had on the Beastie Boys. We never intended to cast the band in a negative light and we regret putting them in a position to defend themselves when they had done nothing wrong.
As engineers and builders of intellectual property, we understand an artist’s desire to have his or her work treated with respect. We should have reached out to the band before using their music in the video.
We know this is only one of the many mistakes we’re bound to make as we grow our business. The great thing about mistakes is how much you can learn from them. As trying as this experience was, we have learned a valuable lesson. From now on, we will secure the proper rights and permissions in advance of any promotions, and we advise any other young company to do the same.
The settlement means the case won’t generate any legal precedent impacting musicians, but if startups and advertisers do indeed heed GoldieBlox’s advice, it’s possible that some degree of future legal acrimony can be avoided.
Second, Google and Viacom settled the massive lawsuit which has been wending its way through the courts for the past seven years. Viacom initially sued Google for $1 billion over 79,000 videos consisting of infringing content on YouTube. Courts had previously ruled in Google’s favor, but this settlement averts the possibility of further appeals. Reports suggest that no money has changed hands.
This case concerned Section 512 of the Digital Millennium Copyright Act, the same provisions that were the subject of last week’s copyright hearing and yesterday’s USPTO forum. The DMCA’s safe harbor offers online service providers limited liabilty for copyright infringement if they agree to play by the rules and respond quickly to reports of infringement. It’s fair to say that the relationship between YouTube and many content creators has changed quite a bit since 2007, as the focus has shifted toward partnership and official content. Additionally, technologies focused on content identification have improved, and YouTube now offers rightshholders more ways to monetize user-uploaded work. Reporter Eriq Gardner suggests that Viacom’s lawsuit may have played a role in pushing YouTube and others online toward the adoption of copyright detection technology. And, as Gardner points out, the suit has created case law that is already being cited as precedent in other copyright suits.
Third, artist Richard Prince and photographer Patrick Cariou settled a lawsuit over alleged copyright infringement stemming from Prince’s use of Cariou’s photographs in a series of paintings from 2008. An appeals court had already ruled that 25 of the 30 paintings in question qualified as fair use, while ordering a lower court to reexamine the additional five works, which featured more minimal alterations. This settlement ducks that final determination.
The case is notable for its finding that new works don’t necessarily have to be commenting on orginal work to be considered transformative and potentially qualify as fair use, which could ultimately have implications for sampling law. Precisely what that impact will be is likely to be the topic of intense debate until the issue actually comes up in court. And it might be a while until that happens if everyone keeps settling their suits!
Photo: Phil Andelman