GossIP: Intellectual Property, Technology and Media Newsletter

27 November 2017

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news.

Australian streaming service takes aim at group that racially harassed senator Sam Dastyari

Australian streaming company Stan has written a trade mark letter of demand to Patriot Blue, alleging that the group’s name has been taken from their upcoming series Romper Stomper. In November 2017, members of the group were filmed racially abusing Labor senator Sam Dastyari at a Melbourne pub, labelling the Iranian-born senator a ‘monkey’ and a ‘terrorist’. Both Stan and production house Roadshow Pictures have issued a statement, distancing themselves from the incident and condemning the group and their followers’ actions. Romper Stomper is a remake of the 1992 movie starring Russell Crowe, which will explore issues of racism and fascism in a post-Trump era. However, both media companies have sought legal action for the misappropriation and infringement of the Patriot Blue trade mark, stating that their series depicts a “purely fictional group” and that they do not support any form of racism. Senator Dastyari is yet to file a police report, choosing to discuss and reflect on the incident further with his family.

Do not ‘Lose Yourself’ in third party assurances

New Zealand’s National Party has been ordered to pay NZ$600,000 (AU$535,000) after breaching copyright for the use in a television advertisement of an ‘Eminem-Esque’ song that was found to have substantially copied Eminem’s ‘Lose Yourself’.

The song was played 186 times on television during the Party’s 2014 election campaign. The damages ordered represent a hypothetical licence fee that would have been charged by the owners of the rights in the song.

The National Party paid fees in respect of the song to production house, Beatbox Music. Prior to using the song in the campaign, it made enquiries and received assurances from the production house that the song did not infringe copyright. The steps taken by the National Party were deemed to be appropriate by the court, however the extent to which the National Party was entitled to rely on the advice is still in question. A second hearing will be held to determine the liability of third parties for providing such advice. Until then, users of production music should seek independent legal advice if they suspect a musical work resembles an existing song.

Justice restored after long-running Namatjira dispute

After a decade-long battle, the family of the late iconic Aboriginal artist, Albert Namatjira, has finally gained the rights to his iconic watercolour collection.

The family was deprived of the rights to the artworks in 1983 when the administrator to Namatjira’s estate, the Northern Territory Public Trustee, sold the copyright rights to publishing company, Legend Press. The copyright was sold for $8,500 against the express intentions stated in the artist’s will and without consultation from his family. The trustee later acknowledged the decision to do so was wrong.

The Namatjira family has been fighting to regain control over the rights and, in October 2017, the rights were returned for a nominal price of $1 after entrepreneur and philanthropist, Dick Smith, brokered a deal between the publishing company and the Namatjira family.

Image theft proceedings brought in the Federal Circuit Court

The accessibility of image search engines has made it easier for individuals to use photos without a proper license, frustrating photographers who are not being compensated for dealings with their works. Photographers are increasingly turning to the courts for redress.

Cases such as Tylor v Sevin [2014] and, more recently, Briner v The Happy Herb Company & Ors [2017] exemplify the court’s intention to uphold the rights of artists. In particular, the court has made it clear that infringements in Australia are to be dealt with under Australian law (which vests copyright automatically in the work without any formal registration). This enables international artists to pursue copyright actions in Australia, even if they have failed to protect their intellectual property under their local copyright law regimes.

The court has also taken a holistic view to enforcement, particularly where it has been asked to award additional damages under s 115(4) of the Copyright Act. The court has been reluctant to impose significant penalties unless defendants have acted with disregard throughout the course of the matter. In Briner v The Happy Herb Company & Ors, Judge Driver noted that all people who download and use photographs from the internet should turn their minds to any copyright which may subsist in a work. In particular, His Honour observed that users “should act promptly and reasonably” when notified of their infringement. Doing so is likely to prevent the commencement of costly and protracted legal action.

While databases such as Google Image Search provide the function to filter a search by ‘usage rights’, users should exercise caution when using images obtained from search engines. Unknown to most who rely on the function, the engine disclaims that it “can’t tell if the license label is legitimate” and encourages users to check the exact terms of use of the photograph.

The data breach notification scheme is coming in early 2018

Changes are being implemented in February 2018 and clients should prepare for the implementation of the mandatory data breach notification scheme.

Click here to read more.

It pays to be [a] Rebel when it comes to challenging defamatory publication

Rebel Wilson wins $4.5m in record defamation judgement.  

Click here to read more.

Disability access provisions

Eli Fisher, Senior Associate in the IP team at HWL Ebsworth, sits down with Emeritus Professor Ron McCallum AO, former Dean of Sydney Law School, and a Consultant in the HWL Ebsworth employment law team, to discuss Australia’s implementation of the Marrakesh Treaty by way of the Copyright Amendment (Disability Access and Other Measures) Act 2017.

Professor McCallum, who lost his eyesight at birth, has been a fierce advocate for the rights of people with disabilities for many decades. He is an expert in labour law and among the most acclaimed legal academics in Australia. He is the first totally blind person to be appointed to a full professorship in any subject at any university in Australia or New Zealand, and was also the first to become a Dean of Law in those countries.

Click here to read more.

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