... or perhaps not so surprising after all. There have been several interesting (and sometimes questionable... as much because their facts are outliers and do not provide guidance to others as anything else) US court copyright decisions of interest to authors of late. There hasn't been anything as egregious as the toddler going crazy, but there's still some comment appropriate. In no particular order:
- Perhaps easiest to deal with is "Happy Birthday to You." Leave aside for the moment that the entire revenue model associated with that piece of drivel has been based upon deception and not-quite-sanctionable bad faith since the 1930s — when the purportedly operative copyright registration application was filed — and that there's some question as to the copyright status of the source work under the 1870 Act in the first place. Chief Judge King of the US District Court for the Central District of California (which includes Los Angeles) granted summary judgment to those challenging the copyright in Marya v. Warner-Chappell Music Co., No. 13–04460 (Doc. 244) (C.D. Cal. 22 Sep 2015), expending almost all of his effort on the simultaneously easier and harder chain-of-title prerequisite. After all, if one can't prove copyright ownership, one can't sue on it (leaving aside all other defenses).
It's easier because it's a pretty simple yes-or-no question based upon documentary proof... or, in this instance, the absence thereof. It's harder because it doesn't provide an awful lot of guidance to others, although it's going to be misquoted as if it does; it also opens a very tiny windowpane into the distinction between the grandious bombast coming out of Nashville regarding "what it owns" and the expensive snipe-hunt of a records search that will be necessary to either challenge or validate that bombast.
This exposes an ethical quandary: Is it ethical for a music publisher to continue claiming ownership in the face of this kind of implicit criticism of its standard practices? I don't think so... but then, I'm very highly predisposed to discredit ownership claims of any IP transferee outside the employer-employee relationship, so perhaps there's room for argument. But it's an argument that must be had.
- Abstract depictions of yoga positions are not subject to copyright. Bikram's Yoga College of India v. Evolation Yoga, No. 13–55763 (9th Cir. 08 Oct 2015). Naturally, this is going to be overstated by those who don't look at the record to see what was actually at issue: Purely functional drawings and depictions of something with a noncreative purpose — a literal "how to" guide. There's a big difference among an abstract drawing showing the moment a player's foot impacts a football (soccer ball) to teach technique; a photograph of that same instant with David Beckham in a game situation taking a free kick; and a heavily photoshopped depiction of a kangaroo doing the same thing, whether the source of the pose was the abstract drawing or the photograph of Beckhamania about to erupt.
Although the court did not focus on the fact/expression distinction as clearly as it could have, that's what is fundamentally at issue concerning the yoga positions. In the football example I gave in the previous paragraph, the expression "kangaroo playing football" is more important than the fact of correct technique (although that's certainly important), and the expressive photographic choices made to depict Beckham in live action are at least as important as the technique (even if that photograph appears in a book on teaching proper technique!). And that's the theoretical core of what's at issue for the yoga dispute (a context that seems more than vaguely disturbing and tinged with hypocrisy).
- Last for today, we come to an area in which both Congress and the Copyright Office have knowingly and willfully evaded their responsibilities for forty years: The form, effect, limits, and parameters of termination (revocation) notices under §§ 203 and 304(c). The Second Circuit, in an opinion notable as much for its dance around stare decisis from its own (arguably incorrect and probably not relevant on these facts) prior decisions, held that a notice given regarding another song — "Santa Claus is Comin' to Town" — was, in fact, effective against a music publisher... whose conduct appears roughly as justifiable as Warner-Chappell's, for similar but slightly different reasons. In Baldwin v. EMI Feist Catalog, Inc., No. 14–00182 (2d Cir. 08 Oct 2015), the Court held that one specific transfer was the relevant one, and that at least one of the notices granted was valid based upon the timing (and other characteristics of the transfer). This particular case is complicated by paperwork deficiencies somewhat similar to, if less extreme than, those that led to the result in the "Happy Birthday" matter. Perhaps this is excessively hyperformal... but probably not more so than needing to go onto land and take a bit of earth in one's mouth, followed by a formal statement of possession.
And it's the law. This is where Congress and the Copyright Office have fallen down, as implied in the Baldwin opinion's gyrations to avoid other Second Circuit decisions (see slip op. at 23–33) that appear to point elsewhere. Bluntly, both Congress and the Copyright Office were remiss in drafting the 1976 Act, later amendments, and what few (inadequate) regulations have been issued regarding the matter, by failing to acknowledge that §§ 203 and 304(c) inherently create a substantial probability of deadlock among the heirs... and are inconsistent with state laws concerning succession of interests. There's a very simple, and very obvious, circumstance in which there is inherent deadlock: Children born to the creator's first spouse (or out of wedlock), versus a second or later spouse surviving at the creator's death. This is hardly an unusual circumstance; hell, it perfectly describes nearly a dozen matters that I've been personally involved in! The statute grants each exactly half of the interest, meaning that absent some agreement or method of resolving deadlock the right (important enough for two of the longer sections in an Act replete with multipage subsections) is utterly meaningless and valueless — and implicitly preresolved in favor of the transferees. All that would have been necessary was a deadlock-breaking mechanism when the divided interests are exactly equal, as is done routinely in every competent succession plan (whether for an estate or anything else) and has been done for the past couple of centuries of American law, so that deadlock is the exception rather than foretold.