Palworld Creator Loves That Others Are Trying To Clone The Game

Culture

from the best-pals dept

We’ve had several posts on the video game sensation that is Palworld in the past. Given that the game has been described by others as “Pokémon, but with guns”, we kicked things off both wondering if Nintendo was going to try to take some kind of misguided legal action on the game, while also pointing out that the game is an excellent case study in copyright’s idea/expression dichotomy. After all, the game does not do any direct copying of any Pokémon IP, but does draw obvious inspiration from some of the base ideas behind that IP. In fact, highlighting the dichotomy further was a mod that injected actual Pokémon IP into Palworld, which Nintendo then managed to get taken down.

One of the things writers of this sort of content like me tend to fret about, however, is how often rank hypocrisy suddenly shows up among subjects such as the creators behind Palworld. It’s not uncommon to see a content creator attempt to go after folks doing to them exactly what the creator did in drawing inspiration from others. If you were worried the people behind Palworld would fall into this category, however, it appears very much that you were worried for nothing.

With the success of the game, it was only a matter of time before someone, or many someones, tried to cash in on its success by making similar games, or “clones.” PocketPair CEO Takuro Mizobe noticed this was happening with Palworld and reacted thusly.

“Tencent is already making a Palworld clone game!” PocketPair CEO Takuro Mizobe recently tweeted,” according to a translation by Automaton. He seemed happy about it. “These are incredible times,” he wrote. Some initially interpreted Mizobe as being critical of these moves. An IGN story described him as accusing other companies of ripping off Palworld, a framing the CEO rejected.

“To ‘accuse’ someone of something, means to say they are doing something wrong,” Mizobe wrote in a follow-up tweet responding to the IGN story. “I don’t think what Tencent is doing is wrong. I’m proud that other companies want to make games like Palworld. The industry historically innovates when we borrow ideas from games we love. I’m surprised that many high-quality mobile games are already in development.”

No going legal. No threats. Not even a hint of a complaint. Instead, Mizobe acknowledged what we all already know to be true: video games, like other forms of culture, are and have always been built on what came before it. If the success of Palworld spawns similar games after the fact, that’s not only not a problem, it’s a good thing for gaming culture. Hell, Mizobe even went so far as to praise some of these games’ quality.

Imagine Nintendo doing anything like this. You simply can’t. In fact, when Palworld was released, Nintendo made some vague comments about looking into the game to see if it wanted to pursue any legal action. You know, the exact opposite of the route Mizobe took.

Who knows if these new Palworld clones that Tencent and others are apparently developing will ever see the light of day. We won’t know if they’re actually rip-offs until they’re out, but Mizobe doesn’t seem to mind either way.

And why should he? I imagine he’s far too busy counting all the money his company is making by focusing on making a successful game rather than wringing his hands over some clones that may or may not ever gain any traction.

Filed Under: copying, innovation, inspiration, palworld, takuro mizobe, video games
Companies: nintendo, pocketpair, pokemon, tencent

Judge Seems (Correctly) Skeptical Of AI Copyright Lawsuit

Copyright

from the copAIright dept

Over the last few months there have been a flurry of lawsuits against AI companies, with most of them being focused on copyright claims. The site ChatGPTIsEatingTheWorld has been tracking all the lawsuits, which currently lists 11 lawsuits, seven of which are copyright claims. Five of those are from the same lawyers: Joseph Saveri and Matthew Butterick, who seem to want to corner the market on “suing AI companies for copyright.”

We already covered just how bad their two separate (though they’re currently trying to combine them, and no one can explain to me why it made sense to file them separately in the first place) lawsuits on behalf of authors are, as they show little understanding of how copyright actually works. But their original lawsuit against Stability AI, MidJourney, and DeviantArt was even worse, as we noted back in April. As we said at the time, they don’t allege a single act of infringement, but rather make vague statements about how what these AI tools are doing must be infringing.

(Also, the lawyers seemed to totally misunderstand what DeviantArt was doing, in that it was using open source tools to better enable DeviantArt artists to prevent their works from being used as inspiration in AI systems, and claimed that was infringing… but that’s a different issue).

It appears that the judge overseeing that lawsuit has noticed just how weak the claims are. Though we don’t have a written opinion yet, Reuters reports that Judge William Orrick was pretty clear at least week’s hearing that the case, as currently argued, has no chance.

U.S. District Judge William Orrick said during a hearing in San Francisco on Wednesday that he was inclined to dismiss most of a lawsuit brought by a group of artists against generative artificial intelligence companies, though he would allow them to file a new complaint.

Orrick said that the artists should more clearly state and differentiate their claims against Stability AI, Midjourney and DeviantArt, and that they should be able to “provide more facts” about the alleged copyright infringement because they have access to Stability’s relevant source code.

“Otherwise, it seems implausible that their works are involved,” Orrick said, noting that the systems have been trained on “five billion compressed images.”

Again, the theory of the lawsuit seemed to be that AI companies cut up little pieces of the content they train on and create a “collage” in response. Except, that’s not at all how it works. And since the complaint can’t show any specific work that has been infringed on by the output, the case seems like a loser. And it’s good the judge sees that.

He also recognizes that merely being inspired by someone else’s art doesn’t make the new art infringing:

“I don’t think the claim regarding output images is plausible at the moment, because there’s no substantial similarity” between images created by the artists and the AI systems, Orrick said.

It seems likely that Saveri and crew will file an amended complaint to try to more competently make this argument, but since the underlying technology doesn’t fundamentally do what the lawsuit pretends it does, it’s difficult to see how it can succeed.

But, of course, this is copyright, and copyright caselaw doesn’t always follow logic or what the law itself says. So it’s no surprise that Saveri and Butterick are trying multiple lawsuits with these theories. They might just find a judge confused enough to buy it.

Filed Under: ai, copyright, direct infringement, inspiration, joseph saveri, matthew butterick, william orrick
Companies: deviantart, midjourney, stability ai

A Bunch Of Authors Sue OpenAI Claiming Copyright Infringement, Because They Don’t Understand Copyright

Copyright

from the not-how-any-of-this-works dept

You may have seen some headlines recently about some authors filing lawsuits against OpenAI. The lawsuits (plural, though I’m confused why it’s separate attempts at filing a class action lawsuit, rather than a single one) began last week, when authors Paul Tremblay and Mona Awad sued OpenAI and various subsidiaries, claiming copyright infringement in how OpenAI trained its models. They got a lot more attention over the weekend when another class action lawsuit was filed against OpenAI with comedian Sarah Silverman as the lead plaintiff, along with Christopher Golden and Richard Kadrey. The same day the same three plaintiffs (though with Kadrey now listed as the top plaintiff) also sued Meta, though the complaint is basically the same.

All three cases were filed by Joseph Saveri, a plaintiffs class action lawyer who specializes in antitrust litigation. As with all too many class action lawyers, the goal is generally enriching the class action lawyers, rather than actually stopping any actual wrong. Saveri is not a copyright expert, and the lawsuits… show that. There are a ton of assumptions about how Saveri seems to think copyright law works, which is entirely inconsistent with how it actually works.

The complaints are basically all the same, and what it comes down to is the argument that AI systems were trained on copyright-covered material (duh) and that somehow violates their copyrights.

Much of the material in OpenAI’s training datasets, however, comes from copyrighted works—including books written by Plaintiffs—that were copied by OpenAI without consent, without credit, and without compensation

But… this is both wrong and not quite how copyright law works. Training an LLM does not require “copying” the work in question, but rather reading it. To some extent, this lawsuit is basically arguing that merely reading a copyright-covered work is, itself, copyright infringement.

Under this definition, all search engines would be copyright infringing, because effectively they’re doing the same thing: scanning web pages and learning from what they find to build an index. But we’ve already had courts say that’s not even remotely true. If the courts have decided that search engines scanning content on the web to build an index is clearly transformative fair use, so to would be scanning internet content for training an LLM. Arguably the latter case is way more transformative.

And this is the way it should be, because otherwise, it would basically be saying that anyone reading a work by someone else, and then being inspired to create something new would be infringing on the works they were inspired by. I recognize that the Blurred Lines case sorta went in the opposite direction when it came to music, but more recent decisions have really chipped away at Blurred Lines, and even the recording industry (the recording industry!) is arguing that the Blurred Lines case extended copyright too far.

But, if you look at the details of these lawsuits, they’re not arguing any actual copying (which, you know, is kind of important for their to be copyright infringement), but just that the LLMs have learned from the works of the authors who are suing. The evidence there is, well… extraordinarily weak.

For example, in the Tremblay case, they asked ChatGPT to “summarize” his book “The Cabin at the End of the World,” and ChatGPT does so. They do the same in the Silverman case, with her book “The Bedwetter.” If those are infringing, so is every book report by every schoolchild ever. That’s just not how copyright law works.

The lawsuit tries one other tactic here to argue infringement, beyond just “the LLMs read our books.” It also claims that the corpus of data used to train the LLMs was itself infringing.

For instance, in its June 2018 paper introducing GPT-1 (called “Improving Language Understanding by Generative Pre-Training”), OpenAI revealed that it trained GPT-1 on BookCorpus, a collection of “over 7,000 unique unpublished books from a variety of genres including Adventure, Fantasy, and Romance.” OpenAI confirmed why a dataset of books was so valuable: “Crucially, it contains long stretches of contiguous text, which allows the generative model to learn to condition on long-range information.” Hundreds of large language models have been trained on BookCorpus, including those made by OpenAI, Google, Amazon, and others.

BookCorpus, however, is a controversial dataset. It was assembled in 2015 by a team of AI researchers for the purpose of training language models. They copied the books from a website called Smashwords that hosts self-published novels, that are available to readers at no cost. Those novels, however, are largely under copyright. They were copied into the BookCorpus dataset without consent, credit, or compensation to the authors.

If that’s the case, then they could make the argument that BookCorpus itself is infringing on copyright (though, again, I’d argue there’s a very strong fair use claim under the Perfect 10 cases), but that’s separate from the question of whether or not training on that data is infringing.

And that’s also true of the other claims of secret pirated copies of books that the complaint insists OpenAI must have relied on:

As noted in Paragraph 32, supra, the OpenAI Books2 dataset can be estimated to contain about 294,000 titles. The only “internet-based books corpora” that have ever offered that much material are notorious “shadow library” websites like Library Genesis (aka LibGen), Z-Library (aka Bok), Sci-Hub, and Bibliotik. The books aggregated by these websites have also been available in bulk via torrent systems. These flagrantly illegal shadow libraries have long been of interest to the AI-training community: for instance, an AI training dataset published in December 2020 by EleutherAI called “Books3” includes a recreation of the Bibliotik collection and contains nearly 200,000 books. On information and belief, the OpenAI Books2 dataset includes books copied from these “shadow libraries,” because those are the most sources of trainable books most similar in nature and size to OpenAI’s description of Books2.

Again, think of the implications if this is copyright infringement. If a musician were inspired to create music in a certain genre after hearing pirated songs in that genre, would that make the songs they created infringing? No one thinks that makes sense except the most extreme copyright maximalists. But that’s not how the law actually works.

This entire line of cases is just based on a total and complete misunderstanding of copyright law. I completely understand that many creative folks are worried and scared about AI, and in particular that it was trained on their works, and can often (if imperfectly) create works inspired by them. But… that’s also how human creativity works.

Humans read, listen, watch, learn from, and are inspired by those who came before them. And then they synthesize that with other things, and create new works, often seeking to emulate the styles of those they learned from. AI systems and LLMs are doing the same thing. It’s not infringing to learn from and be inspired by the works of others. It’s not infringing to write a book report style summary of the works of others.

I understand the emotional appeal of these kinds of lawsuits, but the legal reality is that these cases seem doomed to fail, and possibly in a way that will leave the plaintiffs having to pay legal fees (since in copyright legal fee awards are much more common).

That said, if we’ve learned anything at all in the past two plus decades of lawsuits about copyright and the internet, courts will sometimes bend over backwards to rewrite copyright law to pretend it says what they want it to say, rather than what it does say. If that happens here, however, it would be a huge loss to human creativity.

Filed Under: ai, christopher golden, copyright, inspiration, joseph saveri, llms, mona awad, paul tremlay, richard kadrey, sarah silverman, search engines, training
Companies: meta, openai

How Years Of Copyright Maximalism Is Now Killing Pop Music

Music Industry

from the originality-is-a-con dept

Almost five years ago, we warned that years of copyright maximalists brainwashing the public about ever expansive copyright and the need for everything to be “owned” had resulted in the crazy Blurred Lines decision that said that merely being inspired by another artist to make a song that has a similar feel, even if it doesn’t copy any actual part of the music, was infringing. We warned that this would lead to bad things — and it has.

Over the last few years, we’ve been detailing story after story of similar cases being filed. It’s become so common that we don’t even bother to write about most of the cases. As we’ve said, though, this really is the industry reaping what they’ve sowed. It’s gotten so crazy that even the RIAA (yes, that RIAA) has felt the need to tell courts that maybe their interpretation of copyright has gone too far in the direction of over-protecting copyright holders.

It’s now become such a fact of life that the NY Times has a giant article on how copyright is basically eating pop music these days. It describes a bunch of these cases, and notes that merely “being influenced” makes you liable for copyright infringement, and how that’s causing problems for the very concept of pop music:

That is, to put it plainly, bad news for pop stars, and the producers and songwriters who help them craft hits. They are now marks for frivolous litigation premised upon nebulous assertions as well as a complete and willful ignorance of how pop music is actually made.

Occasionally, pop innovates in a hard stylistic jolt, or an outlier comes to rapid prominence (see: Lil Nas X), but more often, it moves as a kind of unconscious collective. An evolutionary step is rarely the product of one person working in isolation; it is one brick added atop hundreds of others.

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn?t be a surprise when some of what they come up with sounds similar ? and also like what came before.

The whole article is great, including this fantastic line:

It fails to make a distinction between theft and echo, or worse, presumes that all echo is theft. It ignores that the long continuum of pop revisits sonic approaches, melodies, beats and chord progressions time and again. It demands that each song be wholly distinct from everything that preceded it, an absurd and ultimately unenforceable dictate.

All echo is theft. That’s definitely the argument that many copyright system supporters have made for years. And now it’s coming back to bite them.

But here’s the most frustrating part of all of this: even with that one RIAA filing admitting that sometimes copyright could go too far in over-protecting rightsholders, it’s not stopping them or other copyright maximalist organizations from still pushing for more expansive, more draconian, more protective copyright reform. Get ready for it, because it’s coming. There are efforts to import the EU’s dreadful copyright directive, as well as a very strongly backed effort to get rid of the DMCA’s safe harbors. And this is coming at a time when actual revenues for artists have continued to shoot skyward.

However, as with so much about copyright, this is all about third parties — not the artists and creators themselves — looking for their own monopoly rents. They’re looking to figure out how to get a piece of the pie for literally doing absolutely nothing. But if something becomes successful, suddenly they all want a cut, and copyright maximalism has handed them the tools to get exactly that. And, as a result, pop music is under ongoing litigation assault. The labels are making money. The lawyers are making money… and, according to a new Rolling Stone article, the insurance companies are making money:

While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can?t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller ? the founder of music management company Milk and Honey, which represents writers and producers who?ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse ? recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. ?We all feel like the system has failed us,? Keller says. ?There are a lot of aggressive lawyers filing lawsuits and going ham on people.? (He?s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: ?Heritage publishers who aren?t making a lot of money are coming out of the woodwork and saying, ?We?re going to take a piece of your contemporary hit.???)

Under E&O policies, insurance companies can cover several million dollars of an artist?s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients ? a roster of stars who already pay for tour insurance and other standard entertainment-industry policies ? have recently shown interest in E&O coverage. ?When a major claim is all over the press, we?ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,? Charles says.

Notice that all this is money that is not going to the actual artists. The entire premise of the Rolling Stone article is basically that having a hit song is simply too expensive these days, because of bullshit copyright lawsuits that actually have a chance because copyright law has gone insane. Something is clearly broken here, and supporters of the copyright system need to admit that maybe they’ve gone too far.

Filed Under: blurred lines, copying, copyright, inspiration, insurance, lawsuits, liability, pop music

Marvin Gaye Family Not Done With Pharrell Just Yet: Bring Him Back To Court Claiming Perjury

Culture

from the oh-come-on dept

The Blurred Lines lawsuit is the case that just keeps on giving… if the gift you’re looking for is legal shenanigans and ridiculous situations. As you’ll recall, that was the case in which Marvin Gaye’s family suggested that because the Pharrell/Robin Thicke song “Blurred Lines” paid homage to Marvin Gaye’s “Got To Give It Up” with a similar groove, that it was infringing on Gaye’s copyright. The whole thing was crazy — and somehow the court bought it. Despite there not being any actual copying of any copyright-protected content, just the mere similarity of feeling in the song is enough to infringe.

This has created quite a frenzy of nonsense, with artists now afraid to even mention their inspirations, lest they get sued, and sued again for every song they release. The situation has gotten so insane that even the RIAA has stepped in to say that perhaps copyright has gone too far in protecting works. Yes, the RIAA said that copyright may be protecting too much. This is pigs flying, snow in hell, cats and dogs living together, madness.

And, believe it or not, the original case apparently is not fully over yet. During the original case, Pharrell gave a deposition claiming that he didn’t intend to copy Marvin Gaye:

“I did not go in the studio with the intention of making anything feel like, or to sound like, Marvin Gaye.”

But… in a recent GQ published video interview between Pharrell and famed music producer Rick Rubin, Pharrell made an off-hand comment about this same issue. Throughout the interview, he talks about “channeling” other artists when he’s in the studio.

Then somewhere along the line he mentions the Blurred Lines mess, by saying (around 28 minutes into the interview):

Pharrell: But I think for the most part, what we always try to do was reverse engineer the songs that did something to us emotionally and figure out where the mechanism is in there, and as I said to you before, try to figure out if we can build a building that doesn’t look the same but makes you feel the same way. I did that in Blurred Lines and got myself in trouble.

Rubin: Ridiculously.

Pharrell: Stevie Wonder told me, he said, ‘you gotta get the right musicologists in there because juries don’t understand — it’s very technical what you’ve done.’

Rubin: Because the song is nothing like the song

Pharrell: Nope, but the feeling was.

Rubin: But the feeling is not something you can copyright.

Pharrell: No, you can’t copyright a feeling. All salsa songs sound pretty much the same.

Rubin: Yes. And reggae songs. Any genre.

Pharrell: 100 percent.

Rubin: Trap music sounds relatively similar.

Pharrell: But here’s the difference. What we failed– And it hurt my feelings. ‘Cause I would never take anything from anyone. And that really set me back…. But I was really hurt, because what I realized all too late was that what he was trying to tell me was that I needed to do was use my gift to make music, to reverse engineer the disparity between the truth and the jury’s uneducated opinions. And I say that, because rayon and silk feel the same, but we understand that there’s a clear difference. And that was what happened.

Rubin: Yeah.

Pharrell: Like, I really made it feel so much like it, that people were like, oh, I hear the same thing.

And, so, in a new filing by the Gaye Estate (first noted by THREsq), they’re claiming that Pharrell perjured himself in his deposition by saying that he had no intention to channel Gaye:

In the November 4, 2019 Interview, among other things, Williams admits the following:

(1) in creating a new song, he often tries to ?reverse engineer? an older song that did ?something to us emotionally,? so that he can ?figure out where the mechanism is in [the original song],? and ?build a building that doesn?t look the same but makes us feel the same way,? and that he ?did that in ?Blurred Lines? and I got myself in trouble;? and

(2) he actually did too good of a job in this reverse engineering when it came to ?Got To? and ?Blurred?: ?I really made it [?Blurred?] feel so much like it [?Got To?], that people were like, oh, I hear the same thing.?

As discussed further below, these admissions are irreconcilable with Williams?s repeated, sworn testimony in this action that: neither ?Got To? nor Marvin Gaye ever entered his mind while creating ?Blurred,? that he did not try to make ?Blurred? feel like ?Got To? or sound like Marvin Gaye, and that when creating music Williams looks ?into oblivion. We look into that which does not exist.?

Hilariously, the filing tries to make sure that the court does not pay attention to other parts of the interview — notably, the long section about how it’s ridiculous to argue that you can copyright a “feeling.”

As a matter of introduction and clarity, and to avoid all doubt so there is no misunderstanding about what this Motion is not about: this Motion is not about whether Williams and Robin Thicke (?Thicke?) committed copyright infringement with respect to ?Got To.? This Motion is also not about Williams?s very public pronouncements in this Court, in the media, in the November 4, 2019 Interview, and elsewhere that one cannot copyright a feeling, that all music within a genre supposedly sounds the same, and his belief that ?Blurred? and ?Got To? are not compositionally the same (one supposedly being ?rayon? and one being ?silk? according to Williams). The jury, this Court, and the Ninth Circuit Court of Appeals have all spoken on those issues.

The whole case is a mess, but this part of the dispute, including this silly claim of perjury, is just an attempt to get even more money out of Pharrell, this time in seeking attorneys’ fees for the Gaye family’s lawyers.

And, of course, all it will really do is remind musicians to never credit their sources, to never talk about their process, and to hinder future musicians for years, if not decades. All for an extra buck.

Filed Under: blurred lines, copyright, feelings, groove, inspiration, marvin gaye, perjury, pharrell, pharrell williams, rick rubin

RIAA Court Filing In Stairway To Heaven Case Warns Against *OVERPROTECTION* By Copyright

Copyright

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here’s one you don’t see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over “Stairway to Heaven” that we’ve been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin’s “Stairway” did not infringe on the copyright in the Spirit song “Taurus.” While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case — in part to fix the 9th Circuit’s weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I’ve been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it’s actually kind of an important way for most musicians to develop), and if that’s seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And… that’s actually what it’s done. The RIAA and the NMPA (National Music Publisher’s Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360’s Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers? intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can’t believe I’m saying this) make the same argument I’ve been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions?sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of ?selection and arrangement? defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely ?selected? the same elements at some level of generality.

To keep every work from infringing?and to keep authors from being able to claim ownership of otherwise unprotected elements? this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail — again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) — on why it’s crazy to argue that non-protectable works should be analyzed in determining if there’s infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if ?used in combination with other elements in an original manner,? slip op. at 20, as a form of creative ?selection and arrangement,? id. But all compositions will share some elements of ?selection and arrangement,? defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on ?original contributions to ideas already in the public domain,? Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a ?thin copyright that protects against only virtually identical copying.? Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (?When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ?thin? copyright, which protects against only virtually identical copying.?); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the “inverse ratio” rule is incredibly stupid. This is the rule adopted by some courts that the amount of “substantial similarity” necessary to show infringement decreases with the amount of “access” the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out?played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a ?high degree of access? (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a ?lower standard of proof of substantial similarity,?

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit?s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin’s Jimmy Page listening to the recordings “to evaluate his demeanor.” As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that ?allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.? Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, ?Yes, I had heard that song back then??

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page — and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

CBS Bullies Fan Star Trek Project To Shut Down Despite Creators' Pleas For Instructions On Being Legit

Copyright

from the engage-the-lawyers dept

Lawsuits and intellectual property disputes revolving around the Star Trek franchise are legion. This is largely due to just how massive and popular the franchise has been over the past decades and into the present. Still, we’ve seen all kinds of examples of how either the disputes are frivolous or silly, or cases in which IP owners had so many options open to them other than bullying and suing but chose to ignore those alternative routes.

That brings us to Stage 9, a non-commercial labor of love put together by fans of Star Trek: The Next Generation. Stage 9 is the virtual recreation of TNG’s Enterprise starship that allows fans of the series to explore the beloved vessel and immerse themselves in the chief setting of the series. Stage 9 has been built over the past two years by creators that have taken great pains to state that the project was not affiliated or licensed with CBS or Paramount and that they weren’t doing this to make money, only to artistically demonstrate their fandom.

As you’ve probably already guessed, all that was for nothing as CBS sent them a cease and desist letter anyway.

“This letter was a cease-and-desist order,” Scragnog explains. “Over the next 13 days we did everything we possibly could to open up a dialog with CBS. The member of the CBS legal team that issued the order went on holiday for a week immediately after sending the letter through, which slowed things down considerably.”

Part of the team’s strategy at that point was to remind everyone it could at CBS of the words of John Van Citters, CBS VP for Product Development. Back in 2016, shortly before this project started, Van Citters publicly remarked that the Star Trek franchise owes its success to the fans and the community that creates so much fan-work around the Trek universe. He went so far as to plead with fans to get involved, specifically stating that fans creating fanworks are “not going to hear from us. They’re not going to get a phone call, they’re not going to get an email. They’re not going to get anything that’s going to ruin their day… like they’ve done something wrong.”

Those seem to be in direct contradiction to the very real letter that very much ruined the day of the team behind Stage 9. And so the team reached out to Van Citters directly to see if he could get involved and help. Van Citters failed to even respond, and when CBS’ lawyer finally got back from vacation, it was stated that nobody would be working with these fans to make their project legit, it all just had to go away.

“We were hoping, perhaps naively, that the elements of Stage 9 that CBS did not approve of would be highlighted to us, so we could be sure to remove these elements from the project and create something that met with, if not their approval, then at least their acceptance,” Scragnog explains.

To keep the project alive, the team were prepared to make any changes ordered by CBS. Sadly, CBS said that the project could not continue in any form, no matter what changes were made. They provided no further details and, as noted by Eurogamer, did not indicate how Stage 9 had violated the fan art guidelines previously published by CBS and Paramount.

And so the story of a two year fan-project that would have at worst brought some joy to a bunch of Star Trek fans and, at best, would serve as free marketing material for the show, has come to the most unfortunate of endings. Thanks to mealy mouthed executives who can’t be bothered to either back up their own altruistic statements or engage with fans of their property, two years of work simply gets tossed in the trash.

Filed Under: copyright, enterprise, fans, infringement, inspiration, licensing, stage 9, star trek, tng
Companies: cbs, paramount

PlayerUnknown's Battlegrounds Creator Massively Confused And Hypocritical In Rant Begging For More IP For Video Games

Say That Again

from the battle-lost dept

The last time we checked in with the folks behind the massively popular video game PlayerUnknown’s Battlegrounds, the company was complaining about Epic Games “ripping off” its 100 vs. 100 player game mode for its Fortnite title. In that post, we attempted to explain why this sort of thing isn’t “ripping off” in an intellectual property sense, because the idea/expression dichotomy exists. Using someone else’s idea for creative expression is not infringement, whereas using someone else’s specific creative expression is. Simple enough.

Except the folks behind PubG, as the game is sometimes known, didn’t take to this intellectual property lesson and are now instead suggesting that the entire video game industry needs much more intellectual property protection because of all the “ripoffs” out there. This from the creator of the game, Brendan Greene.

He claims elements of his game, Player Unknown’s Battlegrounds (PubG), have been ripped off by other titles and he wants better protection from copycats.

Newly released on the Xbox One, PubG almost singlehandedly created a new genre, the Battle Royale game.

“I want other developers to put their own spin on the genre… not just lift things from our game,” Brendan says.

It’s worth noting that PubG is indeed a unique game in many ways. By tweaking several aspects of a well-worn genre and upping the map size and player count in a battle royale format, the game has become wildly successful. So successful, in fact, that one wonders exactly what danger Greene is seeing out in the hinterlands of clone-games.

Speaking to the Radio 1 Gaming Show, Brendan says: “I want this genre of games to grow.

“For that to happen you need new and interesting spins on the game mode.

“If it’s just copycats down the line, then the genre doesn’t grow and people get bored.”

Sure, there are indeed games that look to essentially clone others, including PubG. But those games are rarely more than blips on the radar in terms of success. And if you think about it, it’s obvious why that is. If game A comes along and introduces new features and gameplay that people gobble up, and then game B tries to copy that format closely, people aren’t going to be buying game B because they already have game A. The only reason to buy the second game is if it offers something the first doesn’t, in which case it isn’t a clone at all, but a separate creative expression that may have some similar elements to the first. That’s exactly how culture, including game genres, are supposed to morph and grow, and it’s essentially Exhibit A as to why the idea/expression dichotomy is such a treasure.

Greene also has a strange idea that video games are not afforded much in the way of intellectual property protections.

Brendan explains: “There’s no intellectual property protection in games.

“In movies and music there is IP protection and you can really look after your work. In gaming that doesn’t exist yet, and it’s something that should be looked into.

Let’s put a fine point on our response to this one: …….wut? The idea that games are not afforded intellectual property protection would come as news to this writer. I must now do some deep introspection, because I’m fairly sure I’ve written hundreds of articles right in these here pages about intellectual property disputes in the video game industry. In fact, not only do IP protections for games exist, the gaming industry specifically has done more in the realm of the nefarious to protect that IP than any other industry (see all of DRM, forever, everywhere). Claiming otherwise is nearly enough for a wellness check on Greene.

Beyond that, some of Greene’s reasoning is downright bizarre.

“Look at movies, Armageddon came out then 20 other comet disaster films came soon after,” Brendan Greene explains.

Can any of our readers actually name 20 comet disaster movies that came out after Armageddon? I can’t even name two. And the reason for that is obvious: once Armageddon did it, it was played out. No reason to go see another one of those movies. His example is actually a perfect encapsulation of why this isn’t a problem. One of the only meteor disaster movies I can recall is Deep Impact, which came out before Armageddon, and indeed was the inspiration for that film, so even this one example only works at a fifth of its supposed impact, and only in reverse. It would be hard to be more wrong with an example than this.

It’s also helpful to look at the Wikipedia article that describes, in the first paragraph on the game’s development, just how much influence and borrowing Greene’s game owes to its success.

Lead designer Brendan Greene, better known by his online handle PlayerUnknown, had previously created the ARMA 2 mod DayZ: Battle Royale, an offshoot of popular mod DayZ, and inspired by the 2000 film Battle Royale.[8][9] At the time he created DayZ: Battle Royale around 2013, Irish-born Greene had been living in Brazil for a few years as a photographer, graphic designer, and web designer, and played some video games such as Delta Force: Black Hawk Down and America’s Army.[10][11] The DayZ mod caught his interest, both as a realistic military simulation and its open-ended gameplay, and started playing around with a custom server, learning programming as he went along.[10] Greene found most multiplayer first-person shooters too repetitive, as maps were small and easy to memorize. He wanted to create something with more random aspects so that players would not know what to expect, creating a high degree of replayability; this was done by creating vastly larger maps that could not be easily memorized, and using random item placement across it.[12] Greene was also inspired by an online competition for DayZ called Survivor GameZ, which featured a number of Twitch.tv and YouTube streamers fighting until only a few were left; as he was not a streamer himself, Greene wanted to create a similar game mode that anyone could play.[12] His initial efforts on this mod were more inspired by The Hunger Games novels, where players would try to vie for stockpiles of weapons at a central location, but moved away from this partially to give players a better chance at survival by spreading weapons around, and also to avoid copyright issues with the novels.[9] In taking inspiration from the Battle Royale film, Greene had wanted to use safe square areas, but his inexperience in coding led him to use circular safe areas instead, which persisted to Battlegrounds.[9]

In that one paragraph alone, how many times are borrowing and influences in the game’s development and Greene’s previous work are mentioned? Way more than the number of comet disaster films that have came out immediately after Armageddon, that’s for sure.

Meanwhile, hey, BBC, how about injecting a little actual journalism into pieces like this? All of these refutations above weren’t exactly hard to tease out of a few well-phrased Google searches, after all. Maybe it’d be better not to simply parrot the claims of someone clearly out of their depths on matters of intellectual property.

Filed Under: brendan greene, copying, copyright, inspiration, mods, playerunknown's battlegrounds, pubg, video games

Copyright Madness: Blurred Lines Mess Means Artists Now Afraid To Name Their Inspirations

Music Industry

from the cultural-losses dept

The ways in which the disastrous Blurred Lines verdict represents a complete mess for the music ecosystem are fairly legion, from chilling artistic creation for fear of unintended infringement to the absurdity of giving estates of long-dead artists license to stifle the release of new art that would benefit our culture as a whole. The awful ripple effects of the lawsuit don’t end there and it’s useful to keep in mind that the jury awarded the $7.3 million verdict to the Marvin Gaye estate acknowledged that there was no willful infringement on the part of Blurred Lines creators Robin Thicke and Pharrell Williams. Put another way, the jury latched onto the duo’s perceived and, in the case of Pharrell, stated inspiration by Gaye’s contributions to music and decided that inspiration was copyright infringement. For anyone with even a cursory understanding of how music is made and creativity sparked, this was crazy.

So crazy, in fact, that as the world waits for the appeal, it seems that some musicians and their management groups have decided that nobody ought to talk about who inspired whom publicly.

Now though, music experts have told the Victoria Derbyshire programme that artists are being advised not to mention publicly who has inspired them. This is because of a high-profile copyright infringement case in which US jurors ruled that Robin Thicke and Pharrell Williams, on their song Blurred Lines, had copied Marvin Gaye’s Got To Give It Up.

According to forensic musicologist Peter Oxendale “everyone’s concerned that inspiration can [now be interpreted as] a catalyst for infringement.

“All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought,” he explains.

If you’ve ever wondered what a chilling effect looks like in its chilly, chilly flesh, this is it. Since time immemorial, it has been common practice in the music industry to laud praise on one’s inspirations and heroes in the music world, with no narrow eyes cast at those inspired by the greats from the past. When Bruno Mars created Uptown Funk, everyone who listened to it knew the era and genre the music was inspired by. Hell, the first time I heard that song, it made me immediately go back and listen to Morris Day and the Time, for instance. That’s how music and culture works… and it’s great for music and culture. Homages such as Uptown Funk or Blurred Lines, with their nods to music’s past and to the great artists that built that past, are undoubtedly what keeps those past artists relevant. But now, in the wake of a terrible jury award for what everyone seems to agree wasn’t even willful infringement, we get to witness copyright killing that part of the culture. Instead, apparently everyone will simply pretend publicly that all art is created in a vacuum of influence, devoid of homage and bereft of cultural context.

And the labels aren’t just stopping there. There are some reports that the labels want artists to secretly disclose their influences contractually as a way to do a risk analysis on future copyright lawsuits.

Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels – although he would not specify names.

“Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks,” he says.

He also confirmed that he is being sent new music to check the possibility of future copyright infringement claims.

No serious person could possibly claim this is good for music, for artists, or for our shared musical culture. And if we agree on that, then we agree that this ruling represents a perversion of copyright from its intended purpose, which is to foster more culture and creation. Much in the way certain industries absolutely hate ambiguity in their markets, so too does the music industry on matters such as these.

Nevertheless, Simon Dixon – one of the lawyers for Ed Sheeran, Sir Elton John and the Rolling Stones – says the judgement has made some people in the industry nervous.

“[The court case] wouldn’t have been decided the same way over here [in the UK],” he explains. “So as a result, everyone felt they knew what the law was, they knew what the parameters were. And when you know what the laws are and the rules are you get comfortable. This injects an element of grey into the picture. So as a result people are less certain now about what they can and can’t do. And as a result, everybody feels a bit nervous.”

Any person who would want to state that this nervousness has no effect on artistic output would make that claim to the peril of their credibility. It has to have an impact and that impact cannot possibly be positive. If ever there were a case of copyright being used against its own purpose, this certainly must be that case. It also serves nicely as a canary in the coal mine for what our permission culture might ultimately do on our wider culture as a whole.

Filed Under: blurred lines, chilling effects, copyright, creatitivity, infringement, inspiration

No Inspiration Without Payment: Ed Sheeran Sued For Two Songs Sounding Too Similar To Old Songs

Copyright

from the that's-not-how-copyright-is-supposed-to-work dept

There’s a fairly long history of lawsuits over songs sounding too “similar” — from the lawsuit over George Harrison’s “My Sweet Lord” sounding too much like “He’s So Fine” to the Verve getting sued by The Rolling Stones for the hit “Bittersweet Symphony” sounding similar to the Stones’ “The Last Time.” But after last year’s verdict in favor of Marvin Gaye’s estate in the “Blurred Lines” case, the floodgates seem to have opened, with a bunch of similar lawsuits over songs that sound vaguely similar, but not much more. A couple of months ago, in a bit of a surprise, Led Zeppelin actually won its case over whether or not it had infringed on someone’s copyright in “Stairway to Heaven,” so there’s at least some hope that not every “similar sounding” song will face a copyright lawsuit — but even then the arbitrariness of these decisions seems problematic.

It’s especially problematic when the songs are clearly different, even if one was inspired by the other, or was written as sort of an homage to the original. It used to be that this kind of building on the works of others was a sign of flattery and something people should be happy about. But with millions of dollars being thrown around thanks to statutory damages, big lawsuits seem to be the answer instead. Earlier this week, hit pop singer Ed Sheeran was hit with a new lawsuit also claiming that he infringed on an old famous Marvin Gaye tune, “Let’s Get It On.” This time, it’s not the Gaye Estate that’s suing (as in the “Blurred Lines” case), but rather the estate of a songwriter on that song, Ed Townsend. The accusation is that Sheeran’s hit “Thinking Out Loud” infringes on “Let’s Get It On.” Here are both tracks:

The bass lines are definitely similar, but that’s really about it. They’re pretty different songs in almost every other aspect. And that bass line is not exactly the most complex or inventive bass line. Of course, people definitely noticed similarities in the bass lines early on. Many reviews mentioned it, and (of course) someone created a YouTube mashup (which I think is actually better than the Sheeran original, but that’s a personal preference…).

But of course you can mashup lots of songs that way and it hardly means copyright infringement.

Since no one else reporting on this has actually shared the filings, I thought I’d fix that. You can read it here or embedded below. There’s not much detail in there other than the claim that “Thinking Out Loud” has copied “the heart” of “Let’s Get It On.” It claims that “the melodic, harmonic and rhythmic compositions” are “substantially and/or strikingly similar” between the two songs. They are, of course, demanding statutory damages, because why not?

Meanwhile, this is the second lawsuit of this nature against Sheeran in just the last few months. In early June, he was sued over another one of his hit songs, “Photograph,” with the lawsuit claiming it was a note-for-note copy of the song “Amazing” by Matt Cardle (written by the plaintiffs in that lawsuit, Martin Harington and Thomas Leonard). In that case, again there are similarities between the two, but they’re basically both just guitar ballads, not all that unlike tons of singer/songwriter guitar ballads with pretty basic progressions.

But, really, this whole focus on these kinds of lawsuits seems really damaging to the way music is created. Being inspired by other musicians or wanting to write something that “feels like” another artist is pretty standard. And it should never be copyright infringement. These are all different songs and they should stand and fall on their own power, not because of some stupid copyright claim. But, of course, thanks to the recording industry ranting on and on about “ownership” of “intellectual property,” combined with the massive rewards for winning a copyright lawsuit (thanks to statutory damages), this is what we end up with — a world where being creative in a manner that is inspired by someone else, or in homage to them, is called “theft” by some. That seems like it’s going to create a massive chilling effect on musicians and songwriters and the way they create music.

Filed Under: copyright, ed sheeran, ed townsend, homage, inspiration, let's get it on, marvin gaye, photograph, thinking out loud