Monthly Archives: February 2012

Public Pinterest – Why The Latest Social Network May Be A Copyright Timebomb

Another week, seemingly yet another Social Network to sign up to, share content over and get excited about. Whether or not you believe that Facebook may well have topped out and grown as big as it ever will, many are (as usual) keeping a weather eye on the horizon for the next big thing; the “Facebook Killer”. Those in the know may already be telling you that Google+ is the natural successor to Zuckerberg’s monster, but given the fact that it’s still a little unwieldy for the luddites amongst us (guilty as charged), it seems as if there’s plenty of room left for other new platforms to muscle in on what remains of our attention spans as the user market inevitably fragments.

Eighteen months or so ago, social network devotees got very excited about Quora; you couldn’t look at your Twitter timeline without seeing a smattering of serious and not-so-serious questions posed on the site. My own geek-related attempts at Quora jokes received an alarming number of serious responses; even I don’t think too seriously about whether or not Batman would actually win a fight with Wolverine – but it looks now as if the site is now only going to find a certain niche (if devoted) audience. Those who love it seem to swear by it and it’s still very much alive and kicking, but the initial hype surrounding Quora seemed to die down pretty quickly, with only the heavy adopters still hanging around to pose their own big questions.

So, it may be easy to feel slightly cynical about the latest new and shiny social network – Pinterest. For those that haven’t come across it yet, Pinterest is an online notice board where users share ideas on chosen topics by “pinning” content onto their boards for their followers to see and comment on. So far, so ethereal. If the naysayers are right, then it’s yet another quirky platform vying for our time. The naysayers will, however, have a problem getting past the fact that Pinterest is well on its way to 12 million users since launching a couple of years ago and is one of the US’ fastest growing sites. You may wonder why, and may be surprised to learn that the majority of new users are Women. The answer seems to be that it’s easy to use and is generating a massive amount of publicity after something of a “breakout” performance around the NFL Superbowl. Even Mark Zuckerberg has a profile.

Like so many of the big social networks, however, the elephant in the room which may see Pinterest hit an early (if theoretical) stumbling block is one of the usual suspects – copyright. Unless you’re only pinning your own content to your profile, you’re using someone else’s and in the vast majority of cases doing so without permission or paying a licence fee. Right now, Pinterest’s users are happily posting photos and other content without the spectre of rights owners casting too much of a shadow over the party, and even though some are already claiming that the site’s whole model is built on massive copyright infringement, it’s continuing to grow like topsy.

Of course, Pinterest’s terms of use do their best to deal with the issue, with users being told on signup that they can’t and shouldn’t pin anything to which they don’t own the rights. This may well be enough to stop a large-scale infringement claim (at least under UK/EU law, where they can fall back on the “hosting defence” in the E-Commerce Regulations and simply immediately remove content when put on notice to avoid liability) and the site itself is now rolling out a metatag which allows website owners to restrict their content from being “pinned” on user profiles.

But, copying any content without permission is still an infringement and still illegal. Whether or not anyone will sue for the damages which they’re recover under UK law (a licence fee) or take on the site itself in another jurisdicition remains to be seen but as of right now the position is the same as with Facebook, Twitter and any other platform – using content without permission or falling under a defence or exemption to UK copyright law (such as fair dealing or educational use, but even then those defences only work with an acknowledgement to the copyright owner) is infringement and could lead to your profile or its contents being pulled.

Of course, in the new digital economy it may be that may rights owners simply let the situation lie and become content with their work simply finding a new audience through sharing and reduce their P.R/Marketing budget. For now, however, the risk is still very much live that big content reacts in the same way it has in the music, games and film industries and threatens action left, right and centre. The platform has massive potential, and with a fair wind it could continue to generate an engaged following but as with any other social media platform, users still need to be aware that they use third party images or other content at their own risk. Trust a Lawyer to spoil the party..

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Shut Up Photoshop – Digital alterations and compositions of Photographs now protected by Copyright

IP Lawyers, like all other professionals, are used to hearing certain phrases over and over again – for example: “How do I copyright this?” “If I make five changes, is that enough?” and the undisputed champion of heavyweight client indignation: “But they stole my idea!!”. It’s at this point that the Lawyer (usually the villain of the piece, occasionally through no fault of their own-they’re usually only seen as getting in the way of something or being the bearer of bad news) has to look their client square in the eye and explain one of the most fundamental (and misunderstood) principles of copyright and pretty much all other UK IP law; IP law doesn’t protect ideas; it protects how those ideas are expressed. If you really want to keep an idea confidential, write it down before labelling it as “confidential” and asking anyone you want to tell about it to sign an NDA.

So far, so good-there’s nothing to stop two different copyright “works” from being inspired by the same idea as long as one doesn’t slavishly copy the other: “The Da Vinci Code” was based on very similar themes to “The Holy Blood And The Holy Grail” and despite a very high-profile copyright infringement case which showed that over ten elements of “Holy Blood” made their way into Dan Brown’s book, that wasn’t enough for its authors and their publishers to win at trial.

It’s often said that there are very few original ideas left, at least in the creative world. Ask the older, more cynical members of the public whether or not Jamiroquai would have had a career if not for the influence of Stevie Wonder or whether Oasis would have been as successful without a record collection made up of the Who, the Stones and the Beatles and they’d probably agree.

So, what is it that makes a work of creativity something that can be protected by copyright if not the general idea? The answer’s actually fairly simple, and explains the whole point of copyright law-it allows creators to make money out of their creativity; it protects intellectual creation. Two songs can sound very similar, say “Born This Way” and “Express Yourself”, without one infringing on the copyright in the other – if the latter only shares a similar melody or chord changes then it can be protected in its own right. What the Court has to decide is whether or not a “substantial part” of the “intellectual creation” in the original has been used without the permission of its author/creator, who is usually the owner of any copyright in it.

So it stayed for a very long time – until late last month, when the goalposts may have been not so much moved but put in separate postcodes by the judgment in the case of Temple Island Collections Limited v New English Teas and John Houghton. Surely such an innocuous-sounding case couldn’t redefine the boundaries of copyright law? It remains to be seen, but the answer as of right now is a qualified “yes”.

Why should you care? Because in this case, the Court found that the basic idea behind a photograph which had been edited in Photoshop was protectable-a shot of a Red London Routemaster Bus travelling in front of a monochrome background containing the Houses Of Parliament was re-created by the Defendant and shot from a different angle, but was still found to infringe. What this means in practice is that the way in which a photograph is composed by its Photographer and subsequently altered can now be protected by copyright, even if the infringing photograph is a different image.

Copyright Lawyers are very excited and/or disturbed by this judgment. Photographs are protected by copyright under English Law as “artistic works” and photography infringement cases usually involve images that have simply been taken wholesale and used without permission, leading to the award of a fairly low sum in damages to compensate their creator by forcing the defendant to pay what they would have made had the image been used under licence (subject to a small increase for flagrant use) or hand over the profits generated through its use. They can also involve situations where an original image has been altered, provided that the Claimant can show that their original work was copied.

For years, though, Photographers haven’t really been able to do a great about a competitor that sets up a similar (not identical) shot and takes their own photo, because the idea behind that shot couldn’t usually be protected.

The last case before Temple Island that dealt with the issue involved, ironically enough, Oasis. Creation Records (their label), Noel Gallagher and others sued News Group Newspapers (no, NOT News International) in 1997 after The Sun began selling a poster which featured a photograph of the set of the album cover of “Be Here Now”taken at the same time as the final image, although not the actual photograph used on the cover. If you’re one of the many who bought it (and the few that still own it save for use as a coaster) then you may appreciate why-it features a Rolls-Royce emerging from a swimming pool and various members of the band in suitably moody poses surrounded by apparently “symbolic” objects.

Creation and the other claimants argued in this case that the scene and composition of the photograph was a separate copyright work and protectable in its own right. The Judge disagreed, finding that assembling disparate objects together could not be protected by copyright, and reinforcing the theory that two works created from a common source don’t always involve the other being copied.

The decision made sense fifteen years ago, and despite the emergence of Photoshop and the rise of airbrushing, it’s always seemed to make sense since. However, in the Temple Island case, the Claimant sued when New English Teas asked a design agency to digitally alter photographs taken by one of its directors of a London Bus crossing Westminster abridge with the Houses of Parliament in the background.

You’d think that there wouldn’t be a problem in taking a photograph of an admittedly iconic London scene. Normally you’d be right, but in this case the parties had crossed swords before, when New English Teas had previously entered into a licence agreement to use a photograph taken of a very similar scene by one of Temple Island’s directors (Mr. Fielder) and then photoshopped to make the Bus seem redder (inspired by Schindler’s List) against a monochrome backdrop with the sky removed in favour of a white background. The image became famous in its own right and has since made Temple a significant amount of money through licensed use on souvenirs.

New English tried to get around the problem of copyright infringement by talking four of their own versions of the photograph and combining them, as well as inserting a stock image of a red London bus. According to the Court, they didn’t go far enough.Judge Birss ran through the different aspects of photography that could be protected by copyright in his judgment, including the angle of the shot, lighting, exposure and effects, creation of the scene and simply standing in the right place, before coming up with a whole new category-digital manipulation.

Even though Fielder used Photoshop to create the image and despite the fact that New English used a stock photograph of the Bus and pointed to several similar images to the original which were already in the public domain before the Temple Island image was created (although they didn’t argue that the image had been “influenced” by them), the fact that they had come into contact with the Temple Island image meant that they had not created their version independently, even if they also drew from other sources-it had guided the creative process behind their version, and New English’s image would not have been created if they hadn’t seen the original.

Although the second photograph was found to be original and the techniques used to create the first image commonplace, the composition and visual contrasts in the Temple Island image amounted to “intellectual creation”. The choices made by photographers lead to different visual effects, and those choices can apparently be protected by copyright on the basis that they are “original”. A substantial part of the composition of the original image had been used, so infringement had taken place. Part of what made the composition original was how it had been altered.

It’s been argued before and since that is decision or a similar one would give claimants like Temple Island a monopoly in a common image, but that may have missed the point here-that monopoly is limited, but the scope of the application of this case may not be. It’s possible that this could lead to a rash of similar claims, and the line between copying an original idea and how that idea is expressed is going to blurred even further. Inspiration is valuable, but here perspiration was priceless.

Photoshopped images may now be protected in the same way as the original photograph,but anodyne and everyday images without any real distinctive elements will be tougher to sue on. That won’t stop people from trying however, and the Courts may soon be full of photographers for reasons other than snapping a photo of celebrity claimants. In the meantime, if you’re asked to recreate an iconic image, take more care than ever to steer as far away as possible or risk being crushed by the same red bus as New English.

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Snickers, The ASA and a kick in the Nuts?

Celebrity endorsement of a product or service is nothing new, but on Twitter it’s a brand new way for the rich and famous to make themselves and their commercial partners even richer. In the US, Tweeting for sale is already an industry in itself, and it’s a big business – reality TV Star Kim Kardashian and rapper Snoop Dogg are amongst Twitter’s top celebrity earners, with Kardashian reportedly earning up to $10,000 for sending a single Tweet to endorse a product.

Although the law in the UK on Celebrity Tweeting is not as clear as in the US, where the Federal Trade Commission developed guidelines which state that a celebrity Tweet endorsement must contain the words “ad” or “spon” to show that it’s been paid for, this may all be about to change after the Advertising Standards Authority confirmed yesterday that it has launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers as part of its ‘you’re not you when you’re hungry’ campaign.

Ferdinand had sent out tweets about knitting and Katie Price discussed Eurozone economic policy, with many assuming that both accounts, as well as the feeds of other celebrities such as Ian Botham, had been hacked. How wrong we were – later in the day, the celebrities involved tweeted ‘You’re not you when you’re hungry@snickersUk#hungry#spon’ with a picture on them holding a Snickers. Since they got paid for sending the tweets, the ASA is now investigating whether the initial ‘teaser’ tweets should have indicated that they were part of a stunt or campaign, and if the ‘#spon’ in the last message made it clear enough that this was the case.

It didn’t take long for Twitter to become a very effective advertising platform, or for Celebrities to embrace the commercial possibilities of lending their name to products in less than 140 characters. Given that Twitter in particular creates a very direct connection between the “Twitterati” and their fans, it can, when used properly, be a very powerful advertising platform. Advertising is tightly controlled in the UK by the ASA, whose main aim under the CAP code is to prevent misleading campaigns that “distort the economic behaviour of consumers”. The ASA itself isn’t able to fine or award damages but it is backed up by the OFT, who can take action against campaigns either by applying for an injunction to have them removed or by mounting a prosecution under the Consumer Protection From Unfair Trading Regulations 2008. Last year, the OFT took action against the agency Handpicked Media, who agreed not to “engage in promotional activity unless bloggers within its network prominently disclose that the promotion has been paid for”.

The idea of “Flogs” – fake Blogs or Tweets written from the Consumer’s point of view but either created or paid for by marketers has been around for a few years now. Research shows that Bloggers and Users of Social Networks are increasingly Tweeting about brands and businesses to make their opinions known. If the opinion’s favourable then it’s potentially worth a fortune as genuine and very quantifiable “word of mouth”, which tends to travel very far and very fast.

That is, of course, if it is genuine. Sony was one of the first to experience a backlash at the end of 2006, when the ‘All I Want For Christmas Is A PSP’ viral campaign was exposed as the product of a ‘consumer activation’ firm. Gamers were not impressed, and took to YouTube to post their own negative video messages in response. “Flogging” and by implication sending Tweets designed to “mislead” the public, is criminal offence under the Consumer Protection Regulations. Regulation 3 refers to “unfair commercial practices”, which it describes as any which “contravene the requirements of professional diligence; and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.”

One practice that’s explicitly listed as being unfair is “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.” The statutory maximum fine is £5,000, but in more serious cases of a breach of the regulations the maximum sentence is two years’ imprisonment. However, prosecutions can only usually be brought within three years of the date of the offence.

As yet, there have been no actual prosecutions under the Regulations and it’s important to note that the Handpicked Media case didn’t lead to a conviction – as yet there haven’t been any convictions against advertisers under the 2008 regulations, but the OFT is not afraid to step in where it needs to.

The industry may be learning that fake blogs don’t generate a real return on investment, but a celebrity Tweet can be priceless. Last year, Range Rover enlisted 40 celebrities (including Daisy Lowe and Ben Shepherd) to drive a new model and then Tweet about the experience. Fashion designer Henry Holland seemed pretty unequivocal: “CAN’T WAIT FOR MY NEW RANGE ROVER..!!!”. Lily Allen and Peter Andre have also jumped on the bandwagon and Estee Lauder’s products have regularly tweeted about by Liz Hurley, who has been the “face” of the company since the mid-90s. That fact is strangely missing from her profile.

The ASA and OFT’s next step will be very interesting to watch. Although the CAP Code, which now applies to online advertising, website content and Social Media comments adopted as “marketing messages” as well as print and press, states that advertising must be truthful, not misleading and capable of being substantiated, the penalties for non-compliance are nowhere near as severe as those under the Consumer Protection from Unfair Trading Regulations, which include a fine or even imprisonment. Defences are available, but work best when there’s a careful compliance process already in place and when campaigns are put together with the CAP code and its outer limits in mind.

Unless a celebrity brand advocate makes it clear that they’re being sponsored to express an opinion of a product or service, there’s every chance that they may well be seen to be misleading the public by covertly endorsing it. Although the vast majority of Twitter users will be perfectly able to tell when they’re being sold to, protecting vulnerable consumers is something the ASA and OFT take very seriously. Marketers may now have to factor in the cost of defending a prosecution over a riskier or more “subliminal” campaign or stunt into their ROI, and you can bet that the average Celebrity Tweeter won’t be willing to fund it for them. The industry will be keeping an eye on this case, and it could set a very important precedent. For now, adding #SPON to a celebrity tweet is very advisable, even it uses up 5 characters…

Land Of The Free? Not so much – UK Tweeters deported from USA

Picture the scene – you’re planning a holiday in Los Angeles as a getaway from Coventry. Understandably excited (you’re escaping the UK, after all), you want to share your plans with your friends if for no other reason than to make them jealous and, as you’re one of the “Twitterati”, you send out this tweet to one of your followers:

“Free this week, for quick gossip/prep before I go and destroy America.”

Not long after, you send another tweet talking about “digging up Marilyn Monroe”. Then you think nothing more of it, charge up your iPod (other generic MP3 players are available) for the flight and get ready to arrive at Los Angeles International Airport. Touching down and meandering through immigration with your Visas filled out correctly, it soon becomes clear that you’re not in Kansas any more (although, for the purposes of this post, you COULD be) and that they take this kind of thing pretty seriously around here – imagine the look on my face in 1992 when my Dad was stopped during our first family holiday to Florida and questioned for a good hour or so over both the Iraqi and Libyan visas stamped in his Passport. (He’s an engineer, by the way, and NOT an Arms Dealer.) To put it bluntly, US Immigration has no sense of humour.

Still, if you’ve done nothing wrong, then you have nothing to hide and surely you’ll breeze through Visa Control with the usual sense of incredulity at the sheer amount of information held in your Biometric Passport. Then, you’re arrested and held under armed guard for twelve hours before being put on the first flight back to the UK, having been denied entry to the Land Of The Free after being identified as a possible “threat” by Homeland Security. It sounds like the script for a particularly low-budget episode of “24”, but this happened to Leigh Van Bryan and Emily Bunting around two weeks ago. Explanations as to the fact that his second tweet referred to a joke from “Family Guy” and that “destroy” was UK slang for partying fell on very deaf ears and, after an overnight stay in the cells, both Bunting and Van Bryan were heading back to the sunny Midlands.

You’d like to think that something similar would never happen here, but anyone familiar with the “Twitter Joke Trial” would tell you otherwise. Currently under appeal in the High Court, this case saw Paul Chambers convicted of the offence of “misuse of a public electronic communications system” under the Communications Act 2003 after sending this tweet:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”

Surely we can take a joke, regardless of how high tensions may be over terrorism? Surely anyone monitoring Chambers’ feed would realise that this post wasn’t meant to be taken seriously? You’d think so, but not long after the now-infamous Tweet, Chambers was arrested in late 2009 for offences under Section 51 of the Criminal Law Act 1977 – making a hoax bomb threat. It’s a serious offence that, as in any criminal case, has to be proven beyond reasonable doubt, but it also requires the Prosecution to show that the defendant intended to cause at least one other person to believe that a bomb was about to go off. in the end, Chambers was bailed and eventually charged under section 127 of the Communications Act 2003 for using a public electronic communications network (a definition which includes Twitter, Facebook and any other Social Network) to send a message of “indecent, obscene or menacing character”. This offence does not need to relate to any specific threat and the prosecution does not need to show that anyone even received the message – a far easier conviction to secure.

Chambers was convicted and fined after a Judge found his tweet to be “menacing” and his life has since changed in ways he couldn’t imagine. As well as the sheer waste of tax payers’ money in bringing a prosecution that seems to have not been so much about the public interest but more about heavy-handed and baffling deterrence, Chambers now has a criminal record and a career that’s been set back to square one. You may say that he deserves it, but surely the Police could have just cautioned him and sent him on his way? Many agreed, and the #iamspartacus hashtag was born – thousands retweeted his message to make the point that this case simply went too far and that civil liberty is as important on the web as it is to the Occupy London tent protesters.

The point of all this? Big brother is watching you, now more than ever. The Police are actively monitoring social media. We are seeing more criminal cases involving web use (or misuse) than ever – recently a Manchester woman was jailed after “friending” the Defendant in a trial on which she was a Juror and only last week an academic was jailed for using the web to research a defendant in a case in which she sat on the Jury. Rioters using Facebook, Twitter or BBM to organise civil disobedience have been jailed, and appeals against their sentence dismissed. As much as the US has the Patriot Act and a number of other exceptions to civil liberties which we may see as Orwellian, criminal activity online is now more than ever being treated in the same way as it would offline, and common sense over what you Tweet is going to become far more important than your Avatar.

The Government (specifically Theresa May) have wrung their hands publicly about how to deal with the problem of criminal activity online, and there’s only one answer – education. Thoughtcrime is still fictional, and the Terrorism Act 2006 is better placed to deal with real terror threats made over the web than the Communications Act, which was introduced to deal with threatening telephone calls. As much as you shouldn’t probably say anything on Twitter that you wouldn’t say in person, isn’t the point that you have the right to say it? Simply “switching off Twitter”, as suggested during the 2011 riots, makes tracking those responsible for using it to incite or threaten even more difficult. The Tweets must still flow, but that doesn’t mean the Web is a free-for-all. It never has been, and it’s probably fair to say that someone who’s experienced that wake up call more than most is Leigh Van Bryan. The moral of the story – the law is an ass (at least in this case) and for the meantime, a Tweet in haste may give you an ample opportunity to repent at leisure, maybe even at Her Majesty’s Pleasure.