Pokemon Go game in a hand. ZubatAccording to press reports, German car giant Volkswagen has banned its employees from using the wildly popular smartphone app Pokémon GO during work hours. Reportedly, the company cited impaired attention and distraction from work as the primary grounds for the prohibition, but data security and privacy issues are supposedly involved as well. Volkswagen has not yet made an official statement on the ban.

This app in particular and augmented reality in general pose many legal questions, especially, in the field of privacy law. The most pressing privacy issue with Pokémon GO seems to be the constant tracking of geolocation data. By agreeing to the Pokémon GO Privacy Policy, the user allows Niantic, the company behind the app, to track the user’s “device location […] and some of that location information, along with [the] user name” any time he or she uses the app.

The Concept of Augmented Reality

The app is based on the concept of “augmented reality,” meaning that the real world environment is “augmented” with virtual elements. The app relies on the users’ GPS location data and images taken by their smartphones’ camera devices to let them catch virtual Pokémon monsters on a map overlaying their real surroundings. The real world is used as the setting for the chase.

Data Protection and Privacy Concerns

All gathered data is processed at Niantic’s headquarters in San Francisco, California, United States. While, according to the privacy policy, “information that can be used to identify or recognize [the user]” will, in principle, not be shared, there are still concerns in the Pokémon community regarding the extent to which third parties can access that information. The users’ tracking data could provide information not only on their residency or workplace but also, for example, on their preferred mode of transportation, walking speed and frequency of smartphone use. This information could, by itself or in combination, be considered personal data.

The rules on the collection, use and disclosure of personal data differ among jurisdictions. For example, pursuant to section 3 para. 1 of the German Federal Data Protection Act, personal data is defined as “any information concerning the personal or material circumstances of an identified or identifiable individual.” Within the territory of application of that act, the collection, processing and use of personal data is only permissible in rare prescribed circumstances (see section 4) or with the consent of the data subject. The requirements might be significantly lower in other countries.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

Tattooist demonstrate the process tattoo on handIt is only one example of many, but it grasps the very essence of the issue: In 2013, a New York City coffee shop owner got a tattoo on his right hand saying “I [coffee cup] NY.” Cool, if you are a tattoo fan who also loves coffee. Then he started using an illustration of his tattooed hand as a logo for his shop. Not cool, if you are the New York State Department of Economic Development, which served him with a cease-and-desist letter. In the eyes of the state agency, the use of the tattoo design on the shop’s window was less a reference or a tribute to the famous “I love NY” slogan but rather a plain case of trademark infringement.

Yes, copyright and trademark issues may even emerge from someplace as personal as your skin and the ink decorating it. But there is more to the story.

Tattoos Are Copyrightable

A tattoo is a work of graphic art and thus is, in principle, copyrightable. The copyrightability in each case will, of course, depend on whether the tattoo artist managed to meet copyright law’s originality threshold, which is arguably a rather low bar to pass. One can, therefore, safely assume that quite a few ink drawings on body parts could be considered works of art subject to copyright protection.

That is why, for example, National Football League Players Association (NFLPA) officials began advising NFL players to get copyright waivers from their tattoo artists. A case that drew some media attention was the suit filed by Stephen Allen. Allen, a Louisiana-based tattoo artist, sued video game publisher Electronic Arts (EA) and former Miami Dolphins running back Ricky Williams over a tattoo that Allen put on Williams’ bicep and which later appeared on the cover of EA’s “NFL Street” video game.

The topic of this blog gets even more complicated when considering that some avowed admirers of certain corporate brands reportedly show their loyalty by getting the trademarks inked on their skin. This phenomenon has even spawned a new word—“skinvertising.”

A Look Ahead

Even though the cases above took place in the United States, sooner or later European Courts will have to deal with similar issues because millennials worldwide love a few dots of ink on their body. Some interesting questions of law arise: For example, what is the extent of requests that a cease-and-desist claim could contain? Could the copyright holder of a work of tattoo art demand someone who has that tattoo cover it in every photo of himself that he posts to Instagram? Courts should be prepared to have answers to those kinds of questions.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

Watching show, movie on television at home. Popcorn, remote control.A Spanish man using the pseudonym “Frikidoctor” has been posting videos to a major video-sharing web site that detail the events of several upcoming episodes of a popular medieval fantasy TV series, including some key plot twists. Frikidoctor’s video “predictions” (which later turned out to be remarkably accurate) were also translated to English and posted to Reddit. At some point, the videos had been taken down from the web site, marked with “copyright claim by [a major cable TV network].” Reportedly, the network is asserting that these videos are infringing on its copyright even if some of the videos do not contain any actual video footage or stills from their hit series. After the videos were removed, Redditors began fervent discussions about whether or not the network was entitled to remove those videos. Some legal experts claim that by giving detailed plot information, one could possibly be liable for copyright infringement. This is, however, not clear. Interestingly, the web site has since restored the videos.

Copyright Protection Does Not Extend to Ideas

In principle, copyright protection does not extend to information and ideas themselves. The protection only covers the specific form or manner in which information or ideas are expressed (e.g., a book, play or film).

However, the German Federal Supreme Court affirmed in its Laras Tochter decision that, under the German copyright regime, the protection afforded to a work by copyright went beyond the concrete textual representation of a thought. Rather, the copyright protection extended to components of the work that lie in the telling of the story, in the individual traits and roles of the characters involved and in the arrangement of scenes and scenery. Accordingly, the originality test vested in sec. 2 para. 1 No. 1 of the German Copyright Act (UrhG) did not confine itself to the written word, but also to plot, characters and scenes, as long as they are each original enough to be protectable. Basic plotlines (e.g., a love story about two young people from rival families), however, are merely considered ideas and, therefore, not copyrightable.

But Could Plot Elements Be Copyrightable?

Assuming that the TV series’ plotline is in fact copyrightable, the question remains of whether spoiling single elements of the plotline could be infringing under the applicable national copyright regimes. Where literal similarities between storylines are concerned, even small textual elements are considered to be copyrightable on their own. For example, reproducing an 11-word passage of a novel could be considered copyright infringing—provided, of course, that one does not act within the scope of copyright limitations and exceptions (e.g., citation rights).

This assumption does, however, not necessarily apply in the same way to non-textual elements, when literal similarities between the works are not at issue. In the case of so-called “non-literal” similarities between works, it is unclear whether and, if so, under what circumstances, single plot elements could be copyrightable on their own.

Does spoiling plot details amount to copyright infringement? That question cannot yet be answered with precision. Lawmakers and courts have not yet provided us with sufficient guidelines to address the issue. The only reasonable answer for now is that, yes, in some cases single plot elements could be copyrightable on their own, depending on the circumstances.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

iStock_000034615972_XXXLargeSnapchat, the fast-growing social media network/messaging app, has spawned some controversy over how copyright law is interpreted in the United Kingdom. In a recent Q&A session with members of Parliament, the British government was asked whether it will take steps to prevent Snapchat images from being made public without the image owner’s consent. In his written response dated 24 March 2016, the Minister for Culture and the Digital Economy, Ed Vaizey, answered that “[u]nder UK copyright law, it would be unlawful for a Snapchat user to copy an image and make it available to the public without the consent of the image owner. The image owner would be able to sue anyone who does this for copyright infringement.”

This statement could be overly simplistic because it might imply that any sharing of Snapchat images is unlawful. Nonetheless, it highlights the potential copyright implications of screenshotting and other image-sharing activities on Snapchat and other social media Networks.

Snapchat users send their friends images and video clips that disappear after a set amount of time. Once a file has been opened, the recipient has a maximum time limit of ten seconds to view its contents. If Snapchat can detect that a screenshot has illicitly been taken, the company will try to inform the sender. But there are ways to circumvent notification.

Sharing Screenshots of Images Is Not Necessarily Copyright Infringement

A suit for copyright infringement requires that the person suing is the copyright owner. In the case of Snapchat sharing, it is important to consider if the file is eligible for copyright protection, and if so, whether any defenses apply – for example, a recipent may be able to rely on implied consent to copy the image. If, for example, a certain photograph is eligible for copyright protection, the person who took the photograph – who pressed the shutter – is the person who owns the copyright in that photo. However, not every photograph is eligible for copyright protection, at least under UK law. The protection is based on the involvement of some kind of artistic value. So, ‎if a protected photo was shared in public (e.g. on the Internet) without the consent of the copyright holder this would indeed amount to copyright infringement. If a Snapchat user were to send images of a sexual nature (comforted by their temporary nature), the potential legal ramifications of screenshotting could be even more serious and could involve criminal prosecution. 

The question whether the sender gives implied consent to publish a photograph to other platforms just because she or he shared that image on Snapchat will likely be answered in the negative. As opposed to web pages, for example, a publication on Snapchat does not result in a wide accessibility. After all, the image is only on display for a (very) limited amount of time.

And the Concerns Apply to More Than Snapchat

It goes without saying that these copyright law principles do not only apply to Snapchat but also to images that are (re)shared over other social media networks/messaging apps such as Facebook and WhatsApp.

iStock_000060997176_Large_BBTaking pictures of food and sharing them online through social media has become a new cultural phenomenon. The trend has become so popular that entire blogs and YouTube channels are now devoted to food photography. A recently published article in the German Daily Newspaper Die Welt has, however, spawned some debate whether taking a picture of an elaborately arranged dish and posting it online might be illegal in the sense that it infringes copyright. According to a lawyer cited in that article, food arrangements are, in principle, copyrightble. If this was in fact the case, posting food images to social media without permission could constitute an unauthorized derivative use of a copyrighted work.

The assumption that elaborate food arrangements are liable to fall within the scope of copyright protection is based on some recent German jursidprudence. In its 2013 decision “Birthday Train” (Geburtstagszug), the German Federal Court of Justice (I ZR 143/12) lowered the threshold of originality traditionally required for obtaining copyright protection in the applied arts. Since that decision, the requirements to be placed on the copyright protection of works expressing both aestheticism as well as utilitarian aspects are no different from works of purpose-free art (i.e. museum type art), literature or music. The Court concluded that in order for works of applied art to be protected under copyright law, they require a degree of creativity that would allow the piece to be called an “artistic” performance from the point of view of a public open to art and sufficiently skilled in ideas of art. Consequently, the decisive question when judging copyrightability is whether an elaborate food arrangement came into being through personal intellectual creation, section 2 para. 2 of the German Copyright Act (UrhG).

A personal intellectual creation, in turn, requires freedom that the creator uses for expressing his creativity in an original manner. Even though, food is ultimately meant to be eaten, not all features of its appearance are dictated by its intended purpose. Rather, food arrangements may comprise elements that do not contribute to the utilitarian aspects of how food appears on a plate. For example, chefs can exercise a certain amount of freedom when it comes to choosing color combinations, along with textures, layering and placement. Because not all features of appearance are dictated by the utilitarian aspects of food design, elaborate food arrangements might constitute an original work, provided, they are perceived as artistic by the relevant public.

Conclusion

While the majority of everyday food preparations will most likely not enjoy copyright protection, the possibility may not be ruled out that, in limited circumstances, copyright may subsist in a food presentation or plating arrangement. Thus, posting photographs which merely depict artistic food arrangements without contributing an element of creativity on their own might infringe upon the exclusive rights of the copyright holder. It goes without saying, however, that it can be difficult to draw the line between an artistic dish and one that is simply well presented.

 

iStock_000037619096_LargeThe right to televise sporting events is one of the most valuable commodities in the broadcasting sector. When reports surfaced that live-streaming apps, such as Periscope and Meerkat, had been used to transmit live streams of the “fight of the century” between Floyd Mayweather Jr and Manny Pacquiao on 2 May 2015, they raised the issue of the copyright implications of these kinds of applications.

The legality of web streaming is still considered a grey area because, although the stream creates a copy of a file on a person’s computer, that copy is temporary and is stored exclusively to allow uninterrupted playing of that file. In a 2014 decision, the Court of Justice of the European Union (C-360/13) ruled that, in the course of viewing a website, all copies made on an end-user’s computer screen and in the cache of that computer’s hard disk “satisfy the conditions [of Art. 5 of the Copyright Directive (2001/29/EC)] that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process”. Thus, all copies made when viewing a website may be made without the authorization of the copyright holder. Whether this decision could, by analogy, be extended to web streaming is unclear as the Court did not refer to streaming. In the wake of some cases involving video platform RedTube, the German Ministry of Justice, for example, issued a statement that the mere consumption of copyrighted content by way of streaming does not amount to copyright infringement.

While viewing a web stream might not amount to infringement, setting up a stream might. The question in this context is whether the content transmitted via streaming actually falls within the scope of copyright protection. The Court of Justice of the European Union (C-403/08) noted that, in principle, sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive (2001/29/EC). This includes, in particular, football matches, which are subject to rules of the game, leaving no room for creative freedom whatsoever. Thus, those attending the event can transmit live streams to social media followers and the wider Internet without infringing copyright. However, this applies only to the action taking place in the arena. A televised football game might be judged differently, since the broadcast is subject to various creative decisions by its director(s) such as, inter alia, camera perspectives, close-ups and slow-motion scenes. These tools, or a combination thereof, might give the director(s) enough creative freedom to justify copyright protection of a televised football game. In any event, copyright can subsist in various works contained in the broadcasts. For example, an opening video sequence, pre-recorded films showing highlights of recent matches, or various graphics.

Conclusion

Football, boxing and golf matches as such are subject to rules of the sport and leave no room for creative freedom for the purposes of copyright, so live-streaming from the point of view of an arena attendee will likely not be copyright relevant. The copyright implications of live-streaming might also be different from on-demand-streaming. In the absence of case law addressing the issue, a precise assessment is, however, not yet possible.

iStock_000021366239_FullThe social media platform Twitter has been reportedly removing tweets at the request of users who believe their content has been wrongfully appropriated. According to Twitter user @PlagiarismBad, Twitter replaced the text of those tweets with an explanation that the tweets were “withheld in response to a report from the copyright holder”. This raises the issue of the extent to which retweeting a message on Twitter can actually be construed as copyright infringement. In its Copyright and DMCA policy, Twitter states that it “will respond to reports of alleged copyright infringement, such as allegations concerning the unauthorized use of a copyrighted image as a profile photo, header photo, or background, allegations concerning the unauthorized use of a copyrighted video or image uploaded through our media hosting services, or Tweets containing links to allegedly infringing materials.” However, Twitter did not specifically include the written word within these Guidelines.

The fundamental question whether or not a 140 character tweet can be considered eligible for copyright protection can only be decided on a case-by-case basis. In Germany, for example, tweets can in principle be copyrightable as literary works pursuant to section 2 para. 1 No. 1 of the German Copyright Act (UrhG). However, a necessary precondition for such works to enjoy copyright protection is that they came into being through personal intellectual creation (cf. section 2 para. 2 UrhG). The European Court of Justice (C‑5/08) likewise held that an 11-word newspaper article extract may be protected subject matter under the Copyright Directive (2001/29/EC), provided that it is original in the sense that it is the author’s own intellectual creation. While a limitation to 140 characters might force the author to think about word choice, sentence structure and the manner in which the subject is presented more carefully, it also restricts her or his creative freedom.

Demonstrating the necessary degree of independent intellectual effort can be hard to establish, given that words, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.

Conclusion

While many tweets will most likely not enjoy copyright protection, the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences may be suitable for conveying to the reader the originality of a tweet, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that tweet. Such sentences or parts of sentences are, therefore, liable to come within the scope of subject matter protected by copyright law. In the absence of copyright protection, all written word sequences (or parts thereof) can be freely retweeted without needing to provide attribution to the original author. Possibly, this also applies to the commercial exploitation of those elements through other media, including books.

Happy travel woman in ParisOn 16 June 2015, the European Parliament’s Legal Affairs Committee adopted a report reviewing the EU’s legislative framework in the area of copyright law. The original draft of the report, authored by German Pirate Party MEP Julia Reda, has been subject to various amendments. One amendment that has spawned considerable debate concerns the so called freedom of panorama exception.

This exception to the rights of the copyright holder allows anyone to publish images of works, such as works of architecture or sculpture, made to be located permanently in public places without infringing any copyright that may subsist in such work. The amended draft includes a recommendation, however, that “the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors [the copyright holders, BB] or any proxy acting for them”.

On a European level, the freedom of panorama exception has its roots in Article 5(3)(h) of the Copyright Directive (2001/29/EC). This provision provides for the possibility of Member States having a freedom of panorama exception in their copyright laws, but does not require such a rule. The majority of EU Member States, however, currently apply such exception. For example, Germany enjoys a provision in section 59 of the German Copyright Act (UrhG) that allows anyone, even for commercial ends, to publish photographs of modern buildings or public art installations without infringing copyrights. Other Member States, including France, did not incorporate a freedom of Panorama exception into their national laws.

In France, for example, it is illegal to publish photographs of the Eiffel Tower at night. Whilst the structure of the Tower itself, built in 1889, entered the public domain a long time ago, the Tower’s illuminations are considered to be an artistic work and, thus, subject to copyright protection. As a result, publication of a photograph of one of Europe’s most iconic landmarks requires the photographer to first seek permission of the rights holder. The stance is confirmed by the Eiffel Tower’s operating company, who note the following in the FAQ-Section on their Website:

“The views from the Eiffel Tower are rights-free. Permission and rights must be obtained from the “Société d’Exploitation de la Tour Eiffel” (the Operating Company, or SETE) for the publication of photos of the illuminated Eiffel Tower.”

The final vote on the adoption of the amended report in the plenary of the European Parliament is due to take place on 9 July 2015. Even if the report were to be adopted in it’s present form, the result would merely be a (non-binding) recommendation. It would then be on the European Commission to put forward a formal proposal to revise copyright law. The Commission’s proposals would, in turn, need agreement not only by the Parliament but also by a large majority of EU Member States.

Conclusion

From a legal standpoint, giving effect to the amended report would not necessarily see millions of Europeans face legal action for uploading photos of famous landmarks onto their social network profiles. The restriction of the freedom of panorama exception would primarily affect professional photographers using images for commercial purposes. However, there remains a “grey area” since, for example, the terms of service of Facebook give Facebook the right “to use any IP content that you [the users, BB] post on or in connection with Facebook”. As Facebook and other social network platforms generate revenue through advertising, uploading photos might fall within the scope of the proposed restrictions.

Update: On 9 July 2015, the plenary of the European Parliament has rejected the proposal to restrict freedom of panorama. There is still a chance, however, that the European Commission could include such restriction into its legislative proposals to modernize (further harmonize) copyright law which are expected to be presented in autumn 2015.