The UK Innovation Strategy: Learnings and reflections from 2021/2022
In July 2021, the UK Government’s Department for Business, Energy & Industrial Strategy published a policy paper entitled The UK Innovation Strategy: leading the future by creating it (the “Strategy”). The purpose of the Strategy is to set out various objectives and policy ambitions to help make the United Kingdom a global
Deepfakes and their impact on women: why gender matters
This article was written by Tanya Petersen, who interviewed Kelsey Farish for the École polytechnique fédérale de Lausanne (Swiss Federal Institute of Technology Lausanne) magazine, Dimensions (Summer 2021). Dimensions offers a series of in-depth articles, interviews, portraits and news highlights, and is available in English and in French. Republished here with kind permission from EPFL. Kelsey Farish
Case Summary: Facebook suspends Donald Trump’s account
This article was originally written for and published on LexisNexis. Published 1 June 2021 The Facebook Oversight Board (the board) announced in May 2021 that it upheld Facebook’s decision to temporarily suspend Trump’s account following content he posted during the US Capitol riots on 6 January 2021, on the grounds that doing
The DeepBrief — April 2021
The news stories and research papers about deepfakes that caught my attention in March - April 2021.
Jack Ryan: The Hunt for… Copyright Ownership!
In February 2021, a U.S. federal court in the state of Maryland handed down a decision regarding Jack Ryan, one of Hollywood’s most prolific spies. However, after nearly 90 pages of legal analysis and a review of events reaching back to the 1980s, the Judge was unable to determine who
What we’ve learned from the cheerleader deepfake video
When you hear about deepfakes, what first comes to mind? Many people will often imagine funny but ultimately innocent face-swapping videos depicting celebrities or politicians, which are then shared on social media. Some people may also be aware of how the technology is used as a means of image based sexual
Photo Post: Supreme Court of the United Kingdom
The beautiful Middlesex Guildhall is the home of the Supreme Court of the United Kingdom. Established under the Constitutional Reform Act 2005, the Supreme Court assumed the judicial functions of the House of Lords in 2009. Although not as powerful as the supreme courts of some other countries - it
When does a musician not own their music?
My reflections from Week 2 of the CopyrightX programme at Harvard Law School. Dmitri Shostakovich (1906 – 1975) was a Soviet and Russian composer and pianist, whose piano concertos (such as this one) I really enjoy, and often listened to while studying in law school. Shostakovich is regarded as one of
A lawyer walks into an art gallery…
My reflections from Week 1 of the CopyrightX programme at Harvard Law School. Can bad art benefit from copyright protection? Yes! In fact, even something that is not artistic at all can be copyright protected, provided that it is original and creative. But does this mean that judges should necessarily shy
CopyrightX at Harvard – an introduction!
I'm so excited to announce that I've been selected for CopyrightX, a programme run by Harvard Law School and Harvard's Berkman Center for Internet & Society. For 12 weeks (late January - April) I'll be exploring the current law of copyright, and the impact of that law on art,
Deepfakes: Publication Round-Up
I'm a London-based media and technology lawyer at DAC Beachcroft, and have been researching and writing about deepfakes for a few years. In light of my recent interview for Deep Fakes: Can You Trust Your Eyes? (Dispatches, Channel 4, 28 December) here is a list of my key publications about
How to stay on top of media law developments
It's no good if a lawyer only knows the law, but not how it applies in practice. To that end, it is imperative that media lawyers stay on top of current events and various industry developments. But how do you actually do that? I was asked this by the Film
Predictions for 2021: Will we see new laws on social media and AI?
I was asked by the Society of Computers and Law (SCL) to give my predictions, as a media and technology lawyer, on what 2021 has in store for us! Here are my thoughts on social media regulations and artificial intelligence laws. You can read the transcript below the video. SCL is
Publicity on the Pitch? Football Superstars vs EA Sports
This article was co-authored by myself and my colleague, trainee lawyer Alexander Dimitrov. It was originally published on our law firm's website on 10 December 2020. To what extent does an individual footballer actually ‘own’ his or her image rights? Could a footballer object to the use of their image and
Why IP? 5 Things every creative and start-up should know
On Wednesday 7 October 2020, I was delighted to be on the panel for a webinar masterclass organised by Krissi Boakye of AH Innovations, to help people navigate the wonderful world of start-ups, side hustles and content creation. The event was hosted by Chipo Kureya, a thought leader, activist and
Facebook and a Biden Presidency
I was recently interviewed by Jason Murdock, a reporter for Newsweek, for his article, "What Could Happen to Facebook Under a Joe Biden Presidency, and Should Zuckerberg Be Worried?" In this post, I expand on the quotes I provided in that article regarding section 230 of the Communications Decency Act
Fighting words: Defamation law in England, explained
Defamation laws - to include slander and libel - seek to protect someone's personal reputation and character from destructive attacks. However, these laws must do so without sacrificing freedom of thought and the benefit of public discussion. How is this managed under English law?
Photograph licences: 5 things to know before you sign!
Are you a content creator who has been approached by a brand that wants to use your photos? Are you a burgeoning professional photographer, who wants to syndicate your images? Maybe you want to collaborate with another person, whose images you'd like to post on your social media accounts or
Deepfakes and the Law: an excerpt from my Society of Computers & Law Webinar
On Tuesday, 8 September 2020, I was delighted to give a webinar for the Society of Computers & Law entitled Me and my Deepfake: a closer look at image rights and our digital selves. SCL is a fantastic educational charity so, if you like what you see here, I would
The Tech Behind Deepfakes
I am by no means a computer programmer, let alone an expert in artificial intelligence. But I have done a lot of research on AI and machine learning in the context of deepfakes. In this post, I summarise some of the key concepts underpinning how deepfakes are made. Artificial Intelligence When some
Is someone stealing your Instagram posts?
Here are 10 things to know about copyright infringement on Instagram and other social media platforms
A Lawyer’s Take on Social Media Misdeeds: Part 2
There are many reasons why you might want content removed from someone else's website or social media feed. Many complaints involve defamation or intellectual property rights infringement, and can be settled between the parties themselves through litigation. But sometimes the misdeeds perpetuated online can amount to a criminal offense, which
A Lawyer’s Take on Social Media Misdeeds: Part 1
There are many reasons why you might want content removed from someone else's website or social media feed. Some of the most frequent grounds for complaint concern copyright or trade mark infringement. Defamation and harassment are also common painpoints, as are privacy and data protection concerns. This post, which is
The NFL Takes a Knee: an Update for the Black Lives Matter movement
American football boss admits that it was wrong to censure players who kneeled during the playing of the national anthem as a protest against police brutality and racism. From a legal perspective, it is absolutely essential for employers and brands to constantly keep any codes of conduct under review. For
Her Private Pain: £15,000 awarded for misuse of private information on Facebook
Last week, a High Court judge in England ordered a man to pay his niece £15,000 (nearly $19,000 USD) in aggravated damages for making a Facebook post about her struggles with mental health and self-harming. The Court found that the Uncle committed the torts of misuse of private information, and
Name™ — What to consider when naming your brand, blog, or product
For most people, when they hear the name of their favourite shop or company, they will also feel something, too. Perhaps they will remember the shopping experience, or how the item made them feel when they used it for the first time. Although price, quality, and convenience are obviously key
Using someone’s image in your advertising
What does a brand need to consider, before using a photograph of someone for their advertisement or marketing campaign? Getting it wrong can have serious consequences, ranging from lawsuits to public backlash. So here are my top tips! Celebrities and public figures have been featured in advertisements for centuries. But thanks
Using AI in Film Studio Decision-Making
An "auteur" is a film director who influences their films so much that they rank as an author, and the auteur theory of filmmaking is one that frames the director as the primary creative force in a motion picture. Are we moving into an era in which artificial intelligence algorithm
Deepfakes: 2019 in Review
By now, many people are aware of Deepfakes: a form of digital impersonation, in which the face and voice of a person can be superimposed into video and audio recordings of another individual. But much has happened from technological, social and legal perspectives since deepfakes first surfaced in 2017. Here's
Deepfake Laws: What’s on the Statute Books?
Given the risk that deepfakes pose, some lawmakers assert that new, specific regulations are needed to curtail the proliferation of the technology. Here is a list of laws (including proposals for new legislation*) which specifically address deepfakes, last updated October 2019.
From A to P: Amazon’s Third-Party Problem
With Christmas 'only' two months away, many of us will soon be turning to Amazon for our holiday shopping. But recently, the company has received heavy criticism regarding counterfeited items and expired food sold by third-party vendors. Speaking at the Wall Street Journal Tech Live Conference this week, one of the
Can the Rockets Rebound? The NBA’s Twitter Problem in China
One tweet from the general manager of an NBA team shows us how a well-intentioned post on social media can have explosive financial and political impact. It also serves as a stark reminder of internet censorship in China. Two weeks ago, the General Manager of an American basketball team found himself
Forging Authenticity: Experts’ workshop on Deepfake Technology, Risks and Governance
In September, I had the privilege of attending the Swiss Re Centre for Global Governance in Zürich, Switzerland for a two-day conference on deepfakes. The conference was hosted by the International Risk Governance Center (IRGC), whose objective is to better understand emerging and systemic risks, as well as the governance of opportunities
A Blaze of Glory? The legal history behind flag burning as free speech
Burning the flag is seen by many as provocative and disrespectful, but the right to do so is protected by settled law.
Regulating the Raunchy? Free speech and obscenity under Miller v. California
One of the most interesting aspects of being a technology lawyer is that it necessarily requires a strong understanding of Internet regulation and digital rights, including the right to express yourself online. As such, free speech is one of my favourite areas of legal history and theory. Coincidentally, two major US
Have European laws improved American privacy protections?
On the one hand, some American companies have retreated from the EU. On the other, local governments have begun to take consumer privacy more seriously, by introducing new domestic data protection legislation.
On taking the “scenic route” to becoming a lawyer
According to the Junior Lawyers Division of the Law Society of England & Wales, the average age of a qualifying solicitor now is 29. However, despite the fact that more and more lawyers are joining the profession in their late 20s or even early 30s, it's still common for many prospective
DeepFakes and False Lights: what does the law say?
What do Scarlett Johansson, cyber intelligence experts and some law makers have in common? Their shared concern about AI-generated videos. This post is from February 2019 and much has changed since then. For more recent commentary, view the deepfakes tag. Known as "Deepfakes," these videos can have damaging impact on reputations, emotional
Privacy Day 2019
In 2006 the Council of Europe officially recognised 28 January as a data privacy holiday, to celebrate the date The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was signed in 1981. Also known as Convention 108, this document remains the only international treaty in the
Do Neo-Nazis have a right to privacy?
Earlier this month, a leftist art collective in Germany called the Centre for Political Beauty (Zentrum für Politische Schönheit or "ZPS") launched a website to name and shame neo-Nazis. At soko-chemnitz.de, people were invited to examine photographs taken during this summer's violent anti-immigration protests in Chemnitz, and in exchange for identifying suspected right-wing
🎂 KelseyFarish.com’s 1st Birthday!
As of November 2018, KelseyFarish.com has officially turned one year old! When I come across something in the news about digital rights, free speech, intellectual property or other aspects of the media and entertainment industries, I really do love trying to get to the heart of the issue, and writing
Facebook and Privacy: cases, reports and actions in Europe
A list of European enforcement action, official legislative (Parliamentary) reports, and cases concerning Facebook with respect to data protection and privacy. This is a work in progress, last updated November 2018.
Data Protection Commissioner (Ireland) v Facebook Ireland Limited, Maximillian Schrems [Case C-311/18]
- Jurisdiction: European Union, Ireland
- Status: Case still in progress
- Authority: Court of Justice of the European Union
- Keywords: EU Data Protection Directive (95/46/EC); EU/US Privacy Shield; Fundamental Rights
Transatlantic Data Transfers: US-EU Privacy Shield under review
When personal data travels between Europe and America, it must cross international borders lawfully. If certain conditions are met, companies can rely on the US-EU Privacy Shield, which functions as a sort of "tourist visa" for data. Earlier this week (19 November) the United States Federal Trade Commission finalised settlements with four
Noteworthy interview on new social media advertising regulations
Earlier this autumn, several celebrities were investigated by UK regulators for not labelling social media posts as "advertisements". Given that so-called influencers can potentially sway the shopping habits of millions, the Advertising Standards Association published An Influencer's Guide to making clear that ads are ads, to help celebs and bloggers avoid misleading
The MPRE: my experience sitting the American legal ethics exam as an English lawyer
The Multi-state Professional Responsibility Exam, or “ethics exam” (MRPE) is one of three exams required in order to practice law in an American state (more on that here). Having just taken the exam, here are my thoughts as an English-trained solicitor currently practicing in London. 🌟 UPDATE: I passed the exam! I exceeded the
From stealing to kneeling, what do NFL player contracts say about “bad” behavior?
Three times each year, two professional American football teams journey across the pond to play against each other in the NFL London Games. This weekend however, four players from the Jacksonville Jaguars made headlines for something they did off the field. They were arrested under suspicion of fraud by false representation for attempting to leave a
NDAs and the Sound of Silence
“When truth is replaced by silence, the silence is a lie.” ― Yevgeny Yevtushenko The #MeToo movement has brought Non-Disclosure Agreements (NDAs) as a way to silence allegations of sexual harassment into the public debate. In light of controversies surrounding Donald Trump, Harvey Weinstein and now - Sir Philip Green, the billionaire retailer whose brands
“The Wife” and rights of attribution: an intellectual property perspective
In The Wife, Glenn Close plays Joan Castleman, the steadfast and amenable wife of celebrated novelist Joseph Castleman. But when Joe wins the Nobel Prize in Literature, things start to unravel between them. Is there more to Joan's support than meets the eye? In this post, I consider the merits of
Brexit: Questions and Concerns
Part Two I've attempted to set out the very basics of Brexit in a (currently) three-part guide designed for those who may not be aware of some of the history and context. In Part One of my series, I set out the basics of what the EU is, and why the United Kingdom
Brexit: An Introduction for Americans
Part One I've attempted to set out the very basics of Brexit in a (currently) three-part guide, made for those who may not be aware of some of the history and context. In particular, this has been written with Americans in mind. Why? Because as a UK resident, I know Brexit
Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism
Dear reader, This post was originally published on 14 October 2018, and subsequently deleted on 24 October 2019, after an interested party contacted me and asked that any reference to them in my blog post be removed. I chose to delete the post in its entirety to avoid any further problems. I
TickBox sent packing as film studios and Netflix win $25 million lawsuit
This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. The Alliance for Creativity in Entertainment (ACE), an industry coalition of global entertainment companies and film studios, together with Netflix and Amazon, has secured a major legal victory against Tickbox, a type of
Courtroom Catwalk: The Middle Temple explores Legal Fashion
As a solicitor, my "legal fashion" normally consists of a black or blue dress, paired with a sweater and heels. But this fairly standard outfit worn by City lawyers like myself is quite a departure from those worn by our professional predecessors. Earlier this week, I visited the Middle Temple Library's exhibit, Legal Fashion: From Mantles to Mourning Hoods to discover how English court dress has evolved over the centuries.When the Romans left the British Isles in 425, they took with them their legal system. The Anglo-Saxon law which developed thereafter was based on Scandinavian and Germanic codes and folkright, and varied from village to village. It was not until after the Norman Conquest of 1066 that courts, or indeed any sort of trained legal professionals, began to appear in modern-day England (Maitland on English Law). Read on to see nearly 1000 years of legal fashion...
UK regulator to investigate social media influencers
A number of celebrities and social media stars are being investigated by the Competition and Markets Authority, which says it has concerns that some influencers are failing to disclose that they are being paid for their endorsements. In the early days of social media, Instagram and Facebook were seen as ways
Sir Cliff Richards v BBC: is publicity the soul of justice?
You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South
Chinese IPRs and Trade Wars
著作權 or Zhùzuòquán means "copyright" in Mandarin Chinese. Earlier this week, Chinese authorities kicked-off a campaign against online copyright infringement. Is this crackdown a response to increased pressure from foreign investors —and the Trump administration— for China to combat widespread piracy and counterfeiting? The latest Jianwang Campaign Against Online Copyright Infringement was jointly launched
A Step Too Far? Fifa takes down celebratory World Cup dance video
This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three
France vs Russia in media regulator showdown
France’s broadcasting regulator recently issued a warning to the French division of Russian television channel RT for falsifying facts in a programme about the use of chemical weapons in Syria. The following day, the Russian state media regulator accused French television channel France 24 of violating Russian media laws.
“Faceswap” for Lady Liberty costs US Post Office $3.5M
Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York
Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?
Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.-— Markus Breitenecker, CEO of Puls4 Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the
Fair Play to use FIFA trade marks on social media?
This weekend, together with millions of others around the world, I watched Iceland make its World Cup debut against Argentina. Iceland, the smallest nation to ever qualify for the World Cup, is a special country for me, not least because my husband and were married there! Especially as my home
Now you’re just somebody that I used to know
The GDPR has been in force for less than two weeks, but Europeans have already started to contact companies left, right and centre to exercise their newly enshrined statutory “right to be forgotten.” However, this right is not absolute, and only applies in certain circumstances. Let’s look at the balancing act
Ricciardo’s ritual returns at Monaco Grand Prix
Australian Formula One driver Daniel Ricciardo has an interesting celebratory ritual: he drinks champagne from his sweaty racing shoe. Keen to capitalise on the popularity of the stunt, Formula One has recently trademarked the name of this quirky act, known as a “shoey.” Drinking champagne from a lady's slipper was once
For creatives in California, a recent employment law case may raise concerns over copyright ownership
This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. A California court ruling from April has raised concerns regarding its potential impact on copyright ownership. In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the matter before the court was a wage
Lights, camera, data protection.
Cannes: movie stars, auteurs, glamour, the French Riviera, and
Is posting rap lyrics on Instagram a #HateCrime?
A teenager who posted rap lyrics on Instagram has been convicted of "sending a grossly offensive message over a communications network," which was uplifted to a hate crime. She has received a community order (probation) and must pay costs of £500 ($700 USD) together with a £85 victim surcharge. Chelsea Russell, a 19
American Copyright law to get 21st century remix
In my previous post, I wrote about the European Union's sweeping new Directive on Copyright in the Digital Single Market, which is currently in draft stages. But copyright legislation is getting an update on the other side of the pond, too. Since 1909 — before recordings of music even existed —
No more Safe Harbours for EU-ser Uploaded Content?
The European Union is considering a sweeping new Directive on Copyright in the Digital Single Market, currently in draft stages. Industry groups are keen to ensure their opinions are taken into consideration, especially in instances where consumers share content which belongs to artists, authors, record labels, and television channels. Digital platforms and
The Six Principles of Data Protection: Facebook fails
Facebook may believe that dubious data collection and security practices justify a more connected audience: the incoming General Data Protection Regulations say differently. Once again, data privacy is in the headlines. But this time, it isn't a credit agency or department store that has fallen short of consumer expectations: instead, it's
Is Taylor Swift getting a copycat Reputation?
Taylor Swift’s latest music video, Delicate, has been criticised for its obvious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze. In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in
Lawyering in America and England
George Bernard Shaw once wrote, "England and America are two countries divided by a common language." As an American who chose to pursue my legal career in London, I really enjoy considering legal issues from both an American and an English perspective, as I've done with Taylor Swift and defamation lawsuits, or the concept of celebrity "publicity rights". But what about the differences in the legal system itself, or the education and training needed to become a lawyer? I've answered a few common questions below...
England and the United States are both "common law" jurisdictions. What does that mean and why does it matter?
Most legal systems are based on either Civil Code or Common Law. The system in which a lawyer practices can tell you a lot about their approach to their job, or legal philosophy more generally.
In Civil Law jurisdictions, which are also known as "Napoleonic" or "Roman" systems, the core principles are codified into a written collection of laws and procedures set out in the civil code. Lawyers are inquisitorial rather than adversarial, and it is the judge (or judges), who ask questions and demand evidence. In a civil law system, lawyers present arguments based on the evidence the court finds. The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.
Common Law, by contrast, puts great weight on court decisions, which are considered "law" with the same force of law as statutes. As such, common law courts have the authority to make law where no legislative statute exists, and statutes mean simply what courts interpret them to mean. In most scenarios, the two sides of a dispute argue before a neutral judge, who then makes a decision.
The United States, like most Commonwealth countries and former colonies, is an heir to the common law legal tradition of English law. Of course, certain practices traditionally allowed under English common law have been expressly outlawed by the American Constitution, such as bills of attainder and general search warrants. Practically speaking however, most Americans and Brits will have the same understanding of the roles of lawyers, trials, contracts, and much more.
Fun Fact: "Common law" derives its name from being common to all the King's courts across England following the Norman Conquest of 1066.
Project Gutenberg: the German edition?
Project Gutenberg is an American website which digitises and archives cultural works to encourage the creation and distribution of eBooks. It currently offers 56,000 free books for download, including classics such as Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. Many
From Stockholm to Stock Market: Sweden’s Spotify set to list on NYSE
Music streaming giant Spotify recently filed its application to put shares on the New York Stock Exchange. The 264 page document details the company's key risks and challenges: I've read them so you don't have to! The Securities Exchange Act of 1933, often called the Truth in Securities law, requires that
Lawyerpalooza: when music festivals get intellectual property licensing wrong
Commercialisation is the process of bringing Intellectual Property (IP) to the market in order to be exploited: put simply, it's how artists make money from their creations. To maintain control and balance risk against rewards, creators often use license agreements to ensure their work is used only in accordance with
All the Stars and Constellations
A music video for the new Black Panther film features scenes of striking similarity to artist Lina Iris Viktor's Constellations series. Is this inspiration or infringement? Marvel Studios’ new movie Black Panther features the first black superhero to appear in mainstream comics. It has received widespread acclaim and press, not least because of its
Legal Careers: Applying for Training Contracts & Vacation Schemes
It goes without saying that one of the most important skills any solicitor can have is the ability to organise and prioritise. One of the most helpful systems I implemented during my year-long search for a training contract was an extensive spread sheet. To begin, I listed out the main information of
Cisco v Arista: what next for computer programs and copyright?
Computer programs are functional, but they are also “literary works” that may be protected under copyright law. In December 2016, Arista Networks defended itself against a $335 million copyright infringement lawsuit from Cisco Systems. Cisco is now appealing the decision.Cisco Systems, the largest networking company in the world, is trying to prevent Arista Networks from building ethernet switches which partially rely on technology copied from Cisco. Now on appeal before Federal Court in California (9th Circuit), the legal question is whether aspects of the particular technology deserves copyright protection in the first place. [caption id="" align="alignnone" width="960"]
ethernet switches connect devices together on a network[/caption]
Copyright protects creative expressions of an idea, but not the idea itself. This "idea–expression dichotomy" therefore limits the scope of copyright protection. In an earlier blog post, The Copyright Between Oceans, I explained how the scène à faire doctrine was used as a successful defence in a copyright lawsuit regarding the novel The Light Between Oceans, and its subsequent film adaptation. When scène à faire (French for "essential scene") is applied, common or typical plot developments are denied copyright protection. This means that broad themes, storylines and ideas which are common in a particular genre remain free for use by authors, screen writers, and other artists.
In the United States, computer programs are considered "literary works" under the Copyright Act, 17 U.S.C. § 101. Accordingly, scène à faire may be applied to preclude copyright protection from aspects of a computer program which are common or otherwise "dictated by practical realities." Practical realities include hardware compatibility, manufacturer design, and industry practice. Arista's defence turns on this concept.
UEFA scores goal against internet giants to prevent copyright infringement
Union Des Associations Européennes De Football (UEFA), whose members include 55 national football associations, organises some of the most famous and prestigious football competitions in Europe. Recently, UEFA obtained an injunction against the UK's main retail internet service providers. As a substitute for paid subscriptions to sport packages through Sky, BT and others, some football fans are instead using set-top box devices such as Kodi to connect directly to streaming servers via their IP addresses. A survey for the BBC found that 47% of adults have watched a football match through an illegal provider at least once, with 36% streaming matches at least once per month. Infringement in this way is on the rise for two key reasons. Firstly, an increasing proportion of UK consumers mistakenly believe using devices to access unauthorised streams is lawful. Secondly, most people know they personally won't face charges for pirating illegal streams. UEFA therefore applied for an injunction against the internet companies themselves, relying on the principle of "online intermediary liability." Online intermediaries are companies which provide the infrastructure and data storage to facilitate transactions over the internet. Examples of intermediaries are search engines, web hosts, and internet access and service providers ("ISPs"). Rather than go after private users, copyright holders - such as UEFA, movie stuidos and record labels - consider corporate intermediaries to be more viable targets for lawsuits. Accordingly, if online intermediaries have actual knowledge of the copyright infringement, they may be liable for the illegal behaviour of their customers and viewers.
Services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. — Recital 59, Information Society Directive (2001/29/EC)
Google prepares for the first “Right to Be Forgotten” trials in England
All human beings have three lives: public, private, and secret. ― Gabriel García MárquezThe European Union's Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González ("Google Spain") confirmed the “right to be forgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified right to have personal data relating to them removed from search engines. This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the "right to be forgotten" will be considered by the English Courts. Two unnamed claimants, known only as NT1 and NT2, are bringing a companion case against Google to enforce their right to be forgotten. (NT1 v Google and NT2 v Google, [2018] EWHC 67 (QB) (Rev 3))
Silent Witness: silent on data protection officers
Silent Witness is a BBC crime drama about a team of forensic pathology experts and their investigations into various crimes – it's a bit like American hit shows Bones and Law & Order. In a recent episode, a cyber hacker steals the files of 30,000 patients from a hospital, and then extorts the hospital for payment. As medical secrets are leaked, several murders are tied to the data breach. In addition to the criminal investigations, boardroom drama ensues when the hospital chief is questioned about the (apparently awful) cyber security firm he selected. It was at this point that I turned to my husband in disbelief and said, "where on Earth is the hospital's data protection officer!?" Of course, television dramas are entitled their artistic licence. I'm not sure data protection officers make for enthralling plot devices, if I'm honest. But shows like this demonstrate just how mainstream data breaches, cyber security and hacking personal data have become. In fact, many non-lawyers are now familiar with at least some concept of data protection legislation. With just four months to go until the new General Data Protection Regulations ("GDPR") come into effect and replace the Data Protection Act 1998, here is a reminder as to when a private organisation is required by law to have a data protection officer ("DPO").
That robot took my theatre ticket!
The UK's Digital Economy Act 2017 is to be amended by the Breaching Limits on Ticket Sales Regulations, which will criminalise use of internet bots to bypass limits on ticket purchases set by event organisers.In practice, the problem is not necessarily how the tickets are purchased - by bots or otherwise - but rather, the crazy prices fans are forced to pay on the secondary market. When tickets first go on sale for an event, they hit the primary market. If somebody resells their ticket, they do so on the secondary market. This secondary market is estimated to be worth more than £1bn ($1.4b) per year in the UK alone. When resales are done on a large scale or for considerable profit, it's known as "touting" or "scalping". Touting in the digital age. "Bots" are software applications that run automated tasks (scripts) over the internet, used for years to quickly buy up thousands of tickets at lightening speed. By way of example, American company Prestige Entertainment is alleged to have bought over 300,000 tickets in a two-year period. This included 30,000 Hamilton Tickets and, in another instance, bought over 1,000 tickets to a U2 concert in less than one minute (see Ticketmaster v Prestige Entertainment, case 2:2017cv07232). High and dry. When ticket supply is drastically limited, the bot masters ("power sellers") can resell the bot-obtained tickets to fans at high mark-ups. Tickets for Radiohead's 2016 show had a face value of £65, but were placed on Viagogo for £3,934. A ticket for Adele's concert in London was listed on Get Me In! for an eye-watering £24,840.
Facebook won’t stop the music
Before I started law school, I spoke to a lawyer at Universal Music about licensing, copyright, and other fascets of law pertaining to the music industry. Since becoming a lawyer myself, I'm even more fascinated by the ways in which commercial contracts, digital strategy, artists' rights and expression interact with and shape each other: Facebook's new global, multi-year agreements with Universal and Sony Music are perfect examples of such dynamism. Facebook first inked a deal with Universal Music in late December 2017. The deal with Sony, the largest music publisher in the world, was announced on 9 January. These deals allow Facebook and Instagram users to upload homemade video clips containing songs owned by Universal or Sony, without generating a takedown notice.
New intern for the 1709 Blog!
I'm excited to announce that for the next six months, I'll be an intern blogger for the 1709 Blog - a website dedicated to all things copyright. If you are familiar with IPKat, you may recognise CopyKat posts. I should be writing at least once or twice a month, and hope to
Cease and Desist, Dilly Dilly!
I've written previously about cease and desist letters (also known as letters before action) regarding Taylor Swift and Netflix: as evidenced in these two instances, the standard legal documents can be ridiculous, cheeky, or even rather funny. But Budweiser recently took things to a whole new level when it used a medieval town crier to deliver a cease and desist handwritten scroll to Modist, a Minnesota brewery.American beer company Budweiser launched Game of Thrones-like commercials set in the middle ages, with lords and ladies in authentic(ish) costumes repeating the nonsensical phrase “Dilly Dilly!” In one commercial, banquet invitees approach the king and queen to offer gifts. One man presents a six-pack of Bud Light to the king, who then exclaims, “Sir Jeremy, you are a true friend of the crown. Dilly Dilly!” The members of the royal court then all raise their Bud Lights in response, shouting “Dilly Dilly!” in approval. When the next guest presents a spiced honey mead wine instead of a Bud Light, the king tosses him into the pit of misery.
Morality clauses and talent contracts
As the year draws to a close, most of us will think back on the people and events that shaped 2017. Considered by many to have been one of the biggest stories of the year, it would be difficult to ignore the social (and legal) discourse surrounding the more than forty high-profile men caught in sexual misconduct scandals. Last month, Netflix removed Kevin Spacey from its hit show House of Cards after Spacey was accused of sexual misconduct. However, Spacey claims Netflix cannot legally fire him because his contract did not contain a morality clause. Similarly, Hollywood producer Harvey Weinstein’s employment agreement may have only a very “loose” morals clause that does not allow for his termination, so long as he pays contractual fines and any costs incurred by his company due to his behavior.
A morality clause is a contractual provision that gives a party (usually a company) the unilateral right to terminate the agreement, or take punitive action against the other party (the "talent," which is usually an individual whose endorsement or image is sought) in the event that such other party engages in reprehensible behavior or conduct that may negatively impact his or her public image and, by association, the public image of the contracting company (source).
Don’t sue the messenger
From 1 October, the Intellectual Property (Unjustified Threats) Act 2017 offers new protection for professional advisers (including lawyers) involved in certain intellectual property disputes. If the owner of a trade mark, patent or design thinks someone else is using their intellectual property without permission, they may be tempted to threaten legal action with
Merger at the Movies
British cinema chain Cineworld will buy American chain Regal Entertainment for £2.7 ($3.6) billion
New California law to address gender pay gap
"I knew I was being paid less and I still agreed to do American Hustle because the option comes down to do it, or don’t do it. So you just have to decide if it’s worth it for you. It doesn’t mean I liked it.” — Amy Adams From January 2018, employers
The Monarchy, Meghan, and Trade Marks
Kensington Palace announced this week that Prince Harry and Meghan Markle are officially engaged, and are expected to marry next May. Before we dismiss the celebrations as just another celebrity extravaganza, it's important to remember that the upcoming nuptials will benefit the economy, too. This year, the British Monarchy generated £1.77 billion to the UK economy. This includes a £50 million contribution for fictional shows like The Crown and Victoria, which offer a glimpse into the mystique of the Royal family. The figure also takes into consideration £550 million from tourism: in 2016, 2.7 million people visited Buckingham Palace alone. When William and Kate married in 2011, the British economy was boosted by £2 billion, with £26 million being from Wills and Kate souvenirs and merchandise. Likewise for Harry and Meghan, brands and retailers will want to capitalise on the goodwill and excitement surrounding another Royal wedding. However, certain rules apply to businesses wishing to use images of the Royal family, or their associated symbols and phrases.
A Soundtrack for Data Security
So much of the explosion in innovation in the music industry is around technological processes. But artists still need to focus on their art. To do so, they need to surround themselves with tech-savvy people. And hire a good lawyer. – Gigi Johnson, Director of the Center for Music Innovation, University of California Los AngelesPrivacy policies are painful to read, not least because they're very technical, boring, and long. According to a recent study, if the average person read every privacy policy for each website they visited in a given year, it would take approximately 244 hours, or 40 minutes each and every day. In spite of this, privacy policies have begun to attract mainstream attention.
Fame and fortune: how do celebrities protect their image?
Famous movie stars and athletes earn big bucks beyond their day job at the studio or stadium. Their image can be used to in a variety of commercial contexts, ranging from endorsements and sponsorships, to merchandising and deals with fashion brands and magazines. Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote their N°5 perfume, global sales of the fragrance increased by 30%. Celebrities today spend a huge amount of time and energy developing and maintaining their public image. But here in the United Kingdom, "image rights" have never been clearly stated in law. So how do celebrities protect and control the publicity associated with their name, image, and brand?
Fake News? How about Fake Journalist™
Last week, the New York Times filed a lawsuit against Contessa Bourbon for causing substantial damage and injury to the paper’s business, goodwill and reputation. Despite having never worked for the Times, Contessa has been representing herself as one of their reporters – both in person, and on social media. According to the lawsuit, Bourbon pretends to be a NYT reporter to gain access to press events: she recently interviewed US Education Secretary Betsy DeVos and the Turkish Ambassador under such pretenses. Despite receiving cease and desist letters from the Times previously, Bourbon continues her charade. She tweets about articles she claims to have written for the paper, and her profiles on Facebook, LinkedIn, and Instagram state that she is a NYT reporter. However, with the exception of impersonating police officers or medical doctors (and in England, solicitors), simply pretending to be someone you’re not isn’t technically illegal. The problem impersonators and poseurs face is when they (almost inevitably) break laws concerning privacy matters, defamation, criminal fraud – or, in the NYT’s case – intellectual property.
Lord Hutchinson, barrister who defended “Lady Chatterley’s Lover,” dies aged 102
In October 1960, a jury formed at the criminal court in central London was asked to consider what would become one of the most important cases in modern English history. The trial concerned neither murder, treason, nor espionage, but the publication of D. H. Lawrence's Lady Chatterley's Lover by Penguin Books. In honour of Lord Jeremy Hutchinson QC, a member of the Penguin defence team who passed away yesterday, here is a reminder of why Regina v. Penguin Books was such an enormous decision for the freedom of expression.First published in 1928, Lady Chatterley's Lover tells the story of a young married woman, Lady Constance Chatterley. Her husband, Sir Clifford Chatterley, is handsome and wealthy, but paralysed from the waist down after injuring himself in the First World War. In addition to his physical (read: sexual) limitations, Clifford neglects Constance emotionally: her frustration leads to her affair with the estate's gamekeeper, Oliver. A particular sex scene and liberal use of strong language including "fuck" and "cunt" led to it being banned in several countries.
Cyber security gets Hollywood makeover
Hacking is a major issue for many industries - but Hollywood is an especially tempting target. The new Entertainment Security Operations Center in Los Angeles hopes to provide a secure system for studios to control their valuable creative content.HBO, Sony Pictures, and Netflix have all been hacked in major security breaches. In addition to embarrassing information being made public and loss of consumer confidence, infiltration can cost a film or television company big bucks. According to a Carnegie Mellon University study, films leaked online before official release can lose nearly 20% of their box office revenue. Furthermore, paid subscriptions for Netflix or HBO become less appealing to viewers if they can simply watch their favourite shows elsewhere for free. Why is Hollywood so poorly equipped to safeguard itself from data breaches? Outsourcing may be partially to blame. Special effects, musical scores, set engineering, and technicians are often provided by independent contractors and freelancers. While workers could be brought in-house, doing so would be expensive and limit flexibility when sourcing the best talent. Unfortunately, many of these small firms and individuals simply lack the resources to defend against sophisticated attacks. As a result, the hundreds or even thousands of people working on a project’s creation and distribution become security risks.
Reputation: Taylor Swift’s protections under American and English defamation law
this post is featured on the University of the Arts London's intellectual property blog, creativeIP.org
♫♬ Now we've got problems / and I don't think we can solve them (without lawyers...)The right to freedom of expression is not an absolute right: there are certain restrictions in place to protect an individual's reputation. But those restrictions vary significantly, depending on which side of the Atlantic you're on. Considering the shared legal traditions of the United States and Great Britain, their differences on the issue of free speech is surprising. In early September, PopFront published an article entitled "Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation." Exploring the singer's (somewhat convoluted, if not contrived) connections to the American alt-right, PopFront suggests Swift's song "Look What You Made Me Do" resonates with Breitbart readers, Trump supporters, and white supremacists, et al. The article also shows a screenshot from Swift's music video juxtaposed with a photo of Hitler, noting that "Taylor lords over an army of models from a podium, akin to what Hitler had in Nazi Germany."
Film workers’ rights to be restored as New Zealand announces repeal of controversial “Hobbit Law”
Has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s incoming Labour Government promises to restore certain employment protections for film cast and crew, by repealling the controversial "Hobbit Law" within the next 100 days.New Zealand is famous for being film-friendly. Gorgeous landscapes provide dramatic settings not far from the city comforts, and generous financial incentives are available in the form of government grants. Since the 1990s in particular, the country's film and television industry has participated in many large, complex international productions: such films include The Hobbit and Lord of the Rings franchises, The Chronicles of Narnia, the 2005 King Kong remake, Avatar, District 9, The Lovely Bones, and - a personal favourite of mine - The Piano (pictured above). Earlier this year, Statistics NZ announced that the country’s screen industry revenue had increased to $3.3 billion in 2016, with film production revenue doubling to more than $1 billion. In addition to direct revenues, film and television content also promotes and enhances New Zealand’s “national brand,” with many tourists visiting the country specifically because of what they’ve seen on screen. But has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s so-called "Hobbit Law" came into force in 2010 as a direct result of actors on Peter Jackson's film The Hobbit threatening industrial action. Warner Brothers’ Studio suggested it would retaliate by relocating the US $500m production elsewhere, with Jackson mentioning the possibility of filming in Eastern Europe instead. To keep The Hobbit in New Zealand, Parliament passed the Employment Relations (Film Production Work) Amendment Bill 2010 to limit screen industry workers’ rights.
Gunpowder on Primetime: were torture and execution scenes too violent?
The BBC's new show has been criticised for being "unnecessarily gruesome and brutal," with some viewers saying they became physically ill due to the graphic torture and execution scenes. Is portraying such violence necessary to better understand the historical context of 17th century England, or simply too much for Saturday night primetime television?Tonight is Bonfire Night! The "Gunpowder Treason Plot" of 1605 was a failed mass assassination attempt against King James I of England and VI of Scotland and the House of Lords. A group of English Catholics planned to blow up the Palace of Westminster, following which the Protestant King James would be replaced by a Catholic monarch. When Guy Fawkes was discovered guarding 36 barrels of gunpowder beneath the palace, the plot was foiled and the conspirators were subsequently executed. Londoners celebrated King James's survival by lighting bonfires around the city, as a "public day of thanksgiving." Although it's no longer an official holiday, there are still bonfires and fireworks around the country to remember remember the fifth of November.
The Copyright Between Oceans?
Imagine you’re an author trying to get your screenplay made into a film, but despite giving Miramax Studios and Working Title copies of your script, you have no luck. Ten years later, you discover the theatrical trailer for an upcoming movie starring Michael Fassbinder, Alicia Vikander, and Rachel Weiss. Your heart sinks as you realise that your story has been stolen. What do you do? If you’re Joseph Nobile, you call a lawyer and sue Hollywood for copyright infringement.
In 2012, Margot Watts (writing as M.L. Stedman) published The Light Between Oceans, a novel about a lighthouse keeper and his wife, and their desperate longing for a child. Set primarily in 1920s Australia, Tom and Isabel find an infant washed ashore in a lifeboat after a storm, together with the corpse of the baby’s father. The novel explores the psychological and moral consequences of the couple's choice to raise the baby as their own.
GDPR Spotlight on media platforms
Personal Data has been Hollywood's rising star over the last few years. But will the introduction of Europe's new General Data Protection Regulations steal the spotlight?I had a bit of a migraine this weekend, so I spent the better part of the last two days on the couch watching Narcos and a few period costume dramas on Netflix. As I scrolled through the recommendations deciding what to watch, I smiled to myself thinking of how confusing my behaviours must appear to the algorithms used by Netflix. My tastes vary from watching FBI agents in 1970s Columbia, to Miss Elinor Dashwood in rural Georgian England. Me Before You is apparently a 95% match to my preferences, despite being a film I have no desire to see. On the other hand, Blackfish, the whale documentary I've seen three times, is only a 54% match. Of course, Netflix only knows what my online behaviour reflects. And while it may not be perfect, when my behaviour is combined with my personal data, Netflix recommendations are fairly accurate most of the time. The advancement in behavioural analytics is big business in the world of media consumption - and it's only getting bigger.