Xclusive-Lee Responds to Gigi Hadid’s Fair Use Defence; Swiss Supreme Court Finally Approves Registration of the Sign “APPLE”; Xiaomi Introduces Mimoji Similar to that of Apple’s Memoji; Federal Court Holds Amazon Liable for Defective Third-Party Goods; Apple Music has Crossed 60 Million Subscribers; A&M Studio and OneLoop Collaborate to Expand Digital Music Distribution; Court Rules in Favor of Andy Warhol in a Copyright Infringement Lawsuit; Top Chinese E-Commerce Platform Shein Shuts Down Partially, and more.
COPYRIGHT QUOTE
“You may be in the photograph, but that does not give you the right to use it without permission of the photographer.”
– Dr. Kalyan C. Kankanala, BananaIP Counsels
COPYRIGHT STATISTICS
There is an increase of 9% in the total number of copyright applications filed for the month of June as compared to the month of May. A total of 1917 applications were filed in the month of June, 2019. The majority of applications were filed for literary works and artistic works.
| Sl. No | Type of Work | Number of Applications filed in the Month of May 2019 | Number of Application Filed in the Month of June 2019 | Change | Percentage Change |
| 1 | Literary/ Dramatic Work | 966 | 1000 | 34 | Increase of 3% |
| 2 | Musical Work | 43 | 607 | 154 | Increase of100% |
| 3 | Artistic Work | 454 | 604 | 154 | Increase of 33% |
| 4 | Cinematograph Work | 17 | 47 | 30 | Increase of 176% |
| 5 | Sound Recording | 68 | 111 | 43 | Increase of 63 % |
| 6 | Software | 209 | 152 | 57 | Decrease of 27 % |
| Total | 1757 | 1917 | 160 | Increase of 9 % | |
INTERNATIONAL NEWS
Xclusive-Lee Responds to Gigi Hadid’s Fair Use Defence
Following the previous week’s news where supermodel Gigi Hadid was sued for copyright infringement by photo agency, Xclusive–Lee, the latter’s lawyer has refuted the argument of Hadid’s lawyer claiming fair use as defence. They argued that there has to be some critical use or change to the original work to qualify as transformative work under fair use. But the photograph posted by Gigi Hadid is “barely cropped” and looks exactly similar to that of the original one. Xclusive-Lee has put forth that Hadid attempted to bypass the license fee for the work and has taken it directly from social media. The most controversial argument presented was against the defence of ‘implied license’ to which Xclusive-Lee said that Hadid lives in her own imaginary world.
Swiss Supreme Court Finally Approves Registration of the Sign “APPLE”
After the consistent refusal by the Federal Institute of Intellectual Property (IGE) to register the mark “APPLE” for goods under Classes 14 (precious metals, jewellery) and 28 (toys, video games), Apple Inc. lodged an appeal before the Swiss Federal Administrative Court. The Court partially upheld the appeal and asked IGE to register the trademark under class 14, as it is capable of functioning as a badge of origin but denied it under class 28 saying that the APPLE mark is descriptive of at least some of the goods covered by the generic term. Apple Inc. appealed against the decision to the Federal Supreme Court on the given matter claiming that the lower court based its decision on an incorrect understanding of the mark. Apple Inc. said in its argument that when consumers saw the mark “APPLE” they do not make any translation as it means nothing in languages spoken in Switzerland but do connect it to the company. The Federal Supreme Court ultimately approved registration of the sign under both the classes.
Xiaomi Introduces Mimoji Similar to that of Apple’s Memoji
Chinese electronic company, Xiaomi’s latest CC9 phones contain the same augmented reality crafted human avatar Mimoji’s which are uncannily similar to that of Apple’s Memoji. The CC range of phones have been launched by Xiaomi, after its recent acquisition of the selfie tech company Meitu’s hardware assets. The art style used in making Mimoji is a lot like Apple’s Memoji, with the same facial expressions and color palette. Since Apple does not hold any intellectual property rights over Memoji’s, it cannot technically be called as an act of infringement. Also, as Xiaomi has practically no physical presence in the US, it is unlikely that Apple would pursue this matter.
Apple Music has Crossed 60 Million Subscribers
Apple’s Vice President informed that Apple Music has crossed 60 million subscribers this month, which was still around 50 million as of April. The figure is more than the users of Spotify in the US but worldwide it still holds a 100 million base. It is likely that Apple Music might replace iTunes once MacOS launches Catalina this year.
Federal Court Holds Amazon Liable for Defective Third-Party Goods
A Federal Appeals Court in Pennsylvania has held that consumers can hold Amazon liable for any defective item sold by any of its third-party vendors on its platform. This decision was made after reviewing a case in Pennsylvania, wherein the customer purchased a retractable dog leash on Amazon from a third-party vendor by the name “The Furry Gang”, and while walking her dog, the leash suddenly recoiled and the customer was blinded. Neither Amazon nor the customer could trace the vendor. There have been several suits against Amazon with regard to the sale of defective goods, but each time Amazon has successfully dodged such liability claims.
This time however, the Court ruled against the e-commerce platform, on the grounds that while Amazon was protected for “speech” on its platform, it wasn’t necessarily protected for the sale of goods in the real world. This decision of the Court could seriously impact Amazon’s present and future business operations.
LICENSING NEWS
A&M Studio and OneLoop Collaborate to Expand Digital Music Distribution
A&M Studio, a platform that promotes budding talent in the field of music, has recently joined hands with OneLoop, a digital audio marketplace. The studio aims to bring out new and budding talent in the music fraternity. The two companies have ventured into this partnership to combine their respective assets, which includes A&M Studio’s extensive and in-depth roster of artists and library of content and OneLoop’s distribution platform. The main objective behind this collaboration, is to make a variety of digital music available to a larger audience, both internationally as well as in India.
Court Rules in Favor of Andy Warhol in a Copyright Infringement Lawsuit
Renowned photographer Lynn Goldsmith lost a copyright infringement suit against the Andy Warhol Foundation for the Visual Arts, after the US District Court ruled in favor of the artist. Goldsmith had claimed copyright over certain black-and-white studio portraits that she had taken of the singer Prince. Vanity Fair later, licensed these portraits for $400 and commissioned Warhol to create an illustration of Prince for an article titled “Purple Fame”. The photographer further stated that her black and white photograph was in stark contrast to the artist’s illustration of the photograph, which had loud and unnatural colours added to it.
The Court however, held that Andy Warhol’s illustration of the photograph amounted to fair use, and therefore the artist was not liable for copyright infringement. Goldsmith’s lawyer stated that they would appeal this decision.
E-COMMERCE NEWS
Top Chinese E-Commerce Platform Shein Shuts Down Partially
Shein, one of the top Chinese e-commerce platforms, was forced to shut down partially after a crackdown by Mumbai Customs. This resulted in the seizure of about 500 parcels from Sino India Etail, which is the official seller for Shein. The parcels were confiscated after it was found that Sino India Etail had not paid the entire amount of the customs duty. A lot of small vendors and online retailers have been complaining about Chinese e-commerce platforms shipping goods ordered by Indian buyers to various cities claiming them to be gifts. This is possible due to the provision under the Indian law, that allows any gifts received by Indians up to Rs. 5000 to be exempted from any tax.
However, the authorities have recently discovered that companies like Shein, which depend on Chinese imports, have been misusing this very provision, by evading huge amount of taxes.
Authored and compiled by Neharika Vhatkar and Anusmita Mazumder (Associates, BananaIP Counsels)
The Entertainment Law News Bulletin is brought to you jointly by the Entertainment Law, eCommerce Law, and Consulting/Strategy Divisions of BananaIP Counsels, a Top IP Firm in India. If you have any questions, or need any clarifications, please write to contact@bananaip.com with the subject: Ent Law News.
Disclaimer: Please note that the news bulletin has been put together from different sources, primary and secondary, and BananaIP’s reporters may not have verified all the news published in the bulletin. You may write to contact@bananaip.com for corrections and take down.
