Un associé et co-gérant d’une société d’exercice libéral à responsabilité limitée (Selarl) de médecins avait cédé ses parts en septembre 2006 à la Selarl et cessé son activité médicale dans cette Selarl. Notons qu’une Selarl est une Sarl (société à responsabilité limitée). L’ancien associé assigna la Selarl en paiement des indemnités de gérance perçues par ses coassociés en janvier et février 2006, soit 8.000 euros chacun. La Selarl fut condamnée par le tribunal de grande instance de Brest à payer 12.000 euros à l’ancien associé, qui fut néanmoins débouté de sa demande de prise en charge des cotisations sociales …read more
byLa rénumération d’un gérant d’une société à responsabilité limitée est due tant qu’aucune décision la révoquant n’est intervenue.
Paris Court of Appeals: Photograph of Jimi Hendrix is original and thus protected by French copyright
The Paris Court of appeals has just published a decision which should be of interest to photographers anxious to defend their rights in France.
The Paris civil lower court (Tribunal de Grande Instance) had found in May 2015 that a photograph of Jimi Hendrix taken in February 1967 by British photographer Gered Mankowitz was not protected by French copyright (droit d’auteur) because it was not an original work of art. The court reasoned that the photographer had not shown which elements of the work protected by copyright were an imprint of his personality (traduire sa personnalité).
The photograph at stake represents Jimi Hendrix, facing the photographer, eyes slightly closed, arms crossed in front of the body, exhaling cigarette smoke. It was chosen by a French e-cigarette company to be featured in its advertising campaign, inside its two stores and online, without seeking permission of the author or the owner of the copyright, Bowstir Ltd, the company to which Mr. Mankowitz had assigned his patrimonial rights to the photography. Both filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement, but they lost because they had not been able to prove, according to the Paris lower court, that the photograph was original enough.
The Court was not convinced that the photographer had indeed explained “who is the author of the choices relating to the pose of the subject, his costume and his general attitude.” For the Tribunal de Grande Instance, there was “nothing to enable the judge and the defendants to understand whether these elements, which are essential criteria in appreciating the original characteristics being claimed, the framing, the black and white, the clear décor meant to highlight the subject, and the lighting which is banal for [such a portrait photograph], are the fruit of a reflection of the author of the photograph or of his subject, and whether the work bears the imprint of the personality of Mr. Gered Mankowitz or Jimi Hendrix.”
The Tribunal de Grande Instance had cited at length the European Court of Justice Eva Maria P. v. Standard Verlags GmbH case:
“As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices… As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’. Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.”
On June 13, 2017, the Paris Court of Appeals ruled in favor of Mr. Mankowitz, finding that the Jimi Hendrix photograph was indeed protected by copyright.
The Paris Court of Appeals did not spend much time explaining why the photograph is indeed original and thus protected by the droit d’auteur.
“…the appellants argue that it was Mr. Mankowitz who organized the session at which the photograph in question was taken… who guided and directed Jimi Hendrix during the shooting, and asked him to take the pose reproduced in the photograph in question; they indicate that Mr. Mankowitz chose to take the photograph in black and white in order to give him more attitude and give him the image of a serious musician and that the photographer opted for a Hasselblad camera 500c with a 50mm Distagon lens in order to bring a wide-angle touch to the portrait without creating any distortion; they also state that Mr. Mankowitz chose the decor, the lighting, the angle of view and the frame…
That these elements, added to the fact, uncontested and established by evidence, that Mr. Mankowitz, an internationally recognized photographer, notably for having been the photographer of the Rolling Stones, whose photographs enjoy a high reputation, establish that the photograph at stake is the result of free and creative choices made by the photographer which reflect the expression of his personality.”
Take – away: photographers defending their copyright in France should be ready to provide the court with a description of their creative process.
byR.I.P. Conceptual Separability Test
The US Supreme Court held on March 22, 2017 that a feature incorporated into the design of a useful article is eligible for copyright protection “if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.” The case is Star Athletica LLC v .Varsity Brands. Justice Thomas wrote the opinion of the Supreme Court.
Conceptual Separability is Much Safer
Readers of this blog may remember that this case is about whether cheerleading uniforms can be protected by copyright. Both parties are creating and selling cheerleading uniforms. Varsity Brands has registered some 200 copyrights for two-dimensional designs appearing on the surface of their uniforms and other garments. It sued Star Athletica for copyright infringement, claiming that its competitor had copied five of its designs protected by copyright. The Western District Court of Tennessee granted summary judgment to Star Athletica, reasoning the designs could not be protectable by copyright, as they could not be separated from the utilitarian function of the uniforms. On appeal, the Sixth Circuit Court of Appeals reversed, finding Varsity’s designs to be copyrightable graphic works. The Supreme Court affirmed.
Useful articles cannot be protected by copyright, but a pictorial, graphic, or sculptural work incorporated in the useful article can be protected if it is separable from the useful article. However, such design must be capable of being “identified separately from, and [must be] capable of existing independently of the utilitarian aspects of the article,” 17 U.S.C. § 101. The design can be physically separable or “conceptually separable” from its utilitarian aspect. Physical separability occurs if the feature seeking copyright protection can “be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact,” Compendium §924.2(B). This is easily understandable, but conceptual separability, which applies if physical separability by ordinary means is not possible, is the stuff [bad] dreams [of IP attorneys] are made of. Or, at least, it was, as today’s opinion signals its demise.
The first part of the new test requires that the design seeking copyright protection must be able to be perceived as a two or three-dimensional work of art separate from the useful article. This was the case here. Justice Breyer dissented from the majority, reasoning that the designs on the cheerleading uniforms are not separable because if one would remove them from the uniforms and place them on another medium of expression, such as a canvas, it would create “pictures of cheerleader uniforms.” But Justice Thomas wrote that this does not prevent these deigns to be protected by copyright, because
“[j]ust as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted” (p. 11).
The second part of the new test requires that the design must be able to exist apart from the utilitarian aspect of the article, as its own pictorial, graphic, or sculptural work. If it can’t, then it is one of the useful article’s utilitarian aspects. Thus, the design itselfcannot be itself a useful article (p. 7).
This interpretation is consistent with Mazer v. Stein, a 1954 Supreme Court case studied by all U.S. copyright students. Justice Thomas noted that two of its holdings are relevant in our case (p. 9). The Court held in 1954 that a work of art which serves a useful purpose can be protected by copyright. In the case of Mazer v. Stein, it as was statue which served as a lamp base. The Court also held in 1954 that a work of art is copyrightable even if it was first created as a useful article. Justice Thomas specified that, in our case, the Court interpreted the Copyright Act in a way which is consistent with Mazer v. Stein as today’s opinion “would afford copyright protection to the statuette in Mazer regardless of whether it was first created as a standalone sculptural work or as the base of the lamp.”
R.I.P. conceptual separability test. Justice Thomas explains it is no longer needed, as “[c]onceptual separability applies if the feature physically could not be removed from the useful article… Because separability does not require the underlying useful article to remain, the physical-conceptual distinction is unnecessary” (p.15).
Justice Thomas clarified the scope of the opinion as such:
“To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear” (p. 12).
But what makes a particular uniform feature of stripes and chevrons particular, is it because they are applied on the uniform, or because the uniform is cut in such a way and uses such contrasting colors on which the designs are appearing?
Justice Ginsburg concurred, but she took the view that “[c]onsideration of [the separability] test is unwarranted because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles… [and may thus] gain copyright protection as such” (p. 23 and p. 24).
Should we cheer? Time will tell.
This post was first published on The 1709 Blog.
byWhen is the output of a copyright-protected software program itself protected by copyright?
When is the output of a copyright-protected software program itself protected by copyright? This is a case of first impression for any court of appeals which is pending at the Ninth Circuit. The case is Design Data Corporation v. Unigate Enterprise, Inc., 14-16701. On 17 October, 2016, counsels for both parties presented their arguments at the Ninth Circuit to a three-judge panel, composed of Judge Consuelo M. Callahan, Judge Michael Daly Hawkins and Judge Andrew D. Hurwitz.
Design Data Corporation (DDC) has created a computer aided design (CAD) steel detailing software, SDS/2, which can be used to draw 2-D and 3-D drawings and models of structural steel components. The designs can only be viewed through the SDS/2 software, the SDS/2 Viewer software, and in electronic images exported from SDS/2. Unigate Enterprise (UE) is a company which provides steel detailing CAD files to its clients in the U.S. It does not produce the files itself, but instead outsources their production to contractors in China.
DDC believed that UE had used the SDS/2 software illegally. Representatives of DDC visited UE’s office in August 2012 and UE allowed the representatives to search UE’s computers and copy some files. They found a folder containing installation files for SDS/2 and three patch files which can be used to circumvent SDS/2’s licensing requirement. Defendants admitted during discovery that one of its co-owners downloaded a copy of SDS/2 to an external hard drive, but that she believed this copy to be a free demonstration copy of the software, and that she did not install the software, nor did she try to use it. UE admitted that SDS/2 had been used to create files and drawings in five of its projects, but argued that they were made by contractors in China.
DDC sued UE for direct copyright infringement, claiming it had illegally downloaded a copy of the software and also had copied files and images which are output of the SDS/2 software protected by copyright. It also sued UE for contributory copyright infringement claiming that UE imported from China infringing files and images generated by SDS/2 in violation of 17 U.S.C. §602.
UE moved for summary judgment, claiming that merely downloading a software program without installing or using is de minimis copying and that therefore not direct infringement. UE also argued that it cannot be held liable for contributory infringement, as “wholly extraterritorial acts of infringement cannot support a claim under the Copyright Act even when authorized by a party in the United States,” quoting Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1092, 1995 (9th Cir.1994).
On August 6, 2014, Judge William Orrick from the Northern District Court of California granted Defendants’ motion for summary judgment both for contributory infringement and direct infringement. Defendants had correctly argued that they could not be sued for contributory infringement. Judge Orrick also found that downloading a copy of SDS/2 “without any evidence that the copy was installed or used… amount[ed] at most to a de minimis ‘technical’ violation that is not actionable as a matter of law.”
DDC appealed to the Ninth Circuit, asking the Court to reverse summary judgment. DDC’s counsel argued before the Ninth Circuit that UE did “consciously implement a business model… that was designed to exploit a breach in the copyright protection afforded to software developers by shifting its infringement of [Plaintiff’s software] overseas.” However, as UE cannot be sued for contributory infringement, DDC argued instead that UE directly infringed its copyright by downloading the software and by reproducing the output of the software program which is protected by copyright.
Direct infringement: did UE violate copyright law by copying DDC’s software?
Judge Callahan and Judge Hurwitz were both troubled by the fact that UE had advertised on its site that it used the SDS/2 software. UE’s counsel answered that UE was counting on contractors to use it, but admitted that UE had never asked DDC if it was indeed true that the contractors were legally using the software. UE admitted it had downloaded the software, and therefore copied it, but argued it had not used it and therefore this de minimis copying was not actionable. DDC argued that, by downloading the software, UE had copied the entire SDS/2software code and therefore the copying was not de minimis.
Judge Hurwitz asked UE’s counsel whether the de minimis doctrine should apply each time someone copies a work protected by copyright, even if he does not use it, and the UE’s counsel answered in the affirmative.
Direct infringement: is the output of the software protected by copyright?
DDC argued also that UE has directly infringed the SDS/2 software because it has copied the steel component designs which are a visual display of the software, and are as such output of the software also protected by copyright. For Judge Hurwitz, this is the “really interesting issue in this case.” However, not every output of a software is protectable by copyright. The question of when the output of a computer program is protectable by copyright has not yet been answered by any court which makes it an issue of first impression.
Software’s source code, which is human-readable, and its object code, which is machine-readable, are both protectable by copyright as literary works, if they are original and fixed in a tangible medium of expression. However, the functional elements of the software, such as its systems or procedures, are not protected by copyright since copyright law does not protect process, system, and method of operation. Judge Orrick had quoted Altai and found that the “job files” and the other documents produced by the SDS/2 software “are data not covered by copyright.”
Courts often use the abstraction-filtration-comparison test, first coined by the Second Circuit in Computer Assocs. Int’l v. Altai, to assess which parts of a software program are protected by copyright. The Second Circuit specified that the decision “[did] not control infringement actions regarding categorically distinct works, such as… products of computer programs.” There is no case where a court used the abstraction-filtration-comparison test to determine whether the output of a software has been infringed.
Judge Hurwitz asked DDC’s counsel what makes in her view a particular output protectable by copyright. She offered a test: an output would be protected by copyright if one can tie some sort of creative expression that is included in that output as having emanated from the software. Judge Hurwitz asked her what percentage of creative expression would trigger copyright protection. What if 80% of the creative expression originates from the software user? She conceded that in this case the output would “probably not” be protected by copyright. Judge Callahan found this test too complicated.
UE’s counsel then proposed another test. The output would be protected to the extent that it includes creative expression that has been fixed in the software and embodied in the output. However, if there is additional creative content added to the output by a user, and therefore the proportionality is too imbalanced and weights too heavily in favor of the user, it could be found under the abstract-filtration-comparison test not original and thus not protected. Judge Hurwitz said, that while there is no case addressing the issue, some seem to suggest that the output of a software program may be, in some instances, so substantially similar to the software program that it deserves protection. Judge Hurwitz noted, however, that plaintiff must show substantial similarity.
DDC’s counsel argued that there is not only substantial similarity, but even identity, because, if one inputs the same data into the software, one gets the same design out of it, in an expression which is fixed. But Judge Callahan quoted paragraph 721.6 of the Compendium of U. S. Copyright Office Practice about the “Relationship Between a Computer Program and a Work Created with a Computer or a Computer Program,” which explains that “ownership of the copyright in a work is distinct from ownership of any material object that may be used to create that work.” Judge Callahan asked DDC’s counsel whether this was relevant to the case and she answered that DDC owns the copyright in the software and also owns a copyright in “unnecessary creative expression that accompanies that.” She specified that DDC is not arguing that it owns the copyright in the entire design of the component, only in the expression that accompanies it. DDC considers this to be direct infringement, as it is a derivative work of the component of the software image files.
On rebuttal, Judge Hurwitz asked again DDC’s counsel to explain the relationship between both the creative input of the software and the creative input of its users, and how and when the ratio of these two creative inputs would trigger, or not, the copyright protection of the output. DDC’s counsel answered that DDC is focused on expressive content that is not in the actual design of the component, such as the font or the colors used, the shape of a comment box, or the placement of certain components around the design which appear in the design file, but which are not the design itself. She argued that these elements must be identified using the abstraction-filtration-comparison test to find out whether some elements are protected by copyright, but conceded that there was not any computer software case which used this test.
Image is courtesy of Flickr user Rick Kimpel under a CC BY-SA 2.0 license.
This article was first published on the the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.
by