Cert. Filed In Religious Broadcasters' Appeal of Mandatory Royalty Rates

 A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Sup. Ct., cert. filed 2/23/2024).  In the case, the D.C. Circuit Court of Appeals in a July 28, 2023, opinion (full text) upheld the royalty rates set by the Royalty Board for calendar years 2021 through 2025 that must be paid by various classes of webcasters that stream copyrighted songs over the Internet. In its certiorari petition, the Religious Broadcasters set out the following as one of the Questions Presented for review:

Recently, the Board adopted rates requiring noncommercial religious webcasters to pay over 18 times the secular NPR-webcaster rate to communicate religious messages to listeners above a modest 218-average listener threshold. The D.C. Circuit upheld that disparate burden based on the Board treating some secular webcasters as poorly as religious webcasters. The result is suppression of online religious speech....

Its decision presents ... important legal questions: 

1. Whether approving noncommercial rates that favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment....

ADF issued a press release announcing the filing of the cert. petition.

Satirical Videos Criticizing Jehovah's Witnesses Did Not Violate Copyrights

In In re: DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), (SD NY, Jan. 18, 2022),a New York federal district court quashed a subpoena request under the Digital Millennium Copyright Act seeking the identity of an individual who allegedly infringed copyrights of the Watchtower Bible and Tract Society, the organization that publishes Jehovah's Witness literature. At issue were satirical YouTube videos posted by a lapsed Jehovah's Witness, described by the court in part as follows:

Under the pseudonym of “Kevin McFree,” Movant publishes videos on YouTube featuring stop-frame Lego animations set in a fictitious village called “Dubtown” that satirize and criticize the practices of Jehovah’s Witnesses.

The court concluded that because the YouTube postings amounted to fair use, there was no copyright infringement. The court said in part:

Movant’s other videos in his YouTube channel, like the Dubtown Video, all involve stop-frame Lego animations with titles that are derisive about the practices of Jehovah’s Witnesses.... It is well-established that “[a]mong the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.”

TorrentFreak reports at greater length on the case.

Street Artist Sues Vatican For Using Her Image of Christ On Postage Stamp

 AP reports on a lawsuit filed in Italy last month by a Rome street artist.  Alessia Babrow has sued the Vatican for copyright infringement for using her street art image of Christ on the Vatican's 2020 Easter postage stamp.  The image was glued onto a bridge near the Vatican:

Olivieri, the Vatican’s numismatic chief, has told an Italian journalist that he took a photo of the Christ when he saw it while riding his moped one day and decided to use the image for the Easter stamp in an apparent attempt to appeal to a new generation of stamp enthusiasts.

Copyright Infringement Counterclaims Not Dismissed

In Holy Spirit Association for the Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., (MD PA, July 22, 2019), a Pennsylvania federal district court refused to dismiss counterclaims or strike defenses in a copyright infringement suit between two religious organizations.  At issue is the "Twelve Gates" mark which defendant claims is not a valid trademark, and the Tongil symbol which defendant claims is available to be used by all followers of Rev. Sun Myung Moon.

Satanic Temple Sues Netflix Over Wrongful Use Of Bahomet Statue

Yesterday The Satanic Temple filed suit in a New York federal district court against Netflix and Warner Brothers, seeking $50 million in damages.  The complaint (full text) in United Federation of Churches LLC v. Netflix, Inc., (SD NY, filed 11/8/2018), alleges that defendants wrongfully used the image of a statue belonging to the Satanic Temple in its television series Chilling Adventures of Sabrina. The Satanic Temple alleges that it spent $100,000 to develop the statue, Baphomet with Children, which is a modification of the historical deity Baphomet:

Baphomet historically involved a goat’s head ... on a female body associated with Lilith, a figure from Jewish mysticism sometimes considered a goddess of the night. The classic visual representation of idea of Baphomet is an image created in or about 1856 by an occult historian Eliphas Levi.... 

[T]he TST Baphomet with Children, consists of several modifications from the historic expressions of the deity....

The Sabrina Series’ evil antagonists stand in stark contrast to TST’s tenets and beliefs.... By misappropriating TST Baphomet with Children (which is a registered copyright and famous mark of TST) to publish this false and defamatory depiction of TST, Defendants have engaged in three classes of wrong: copyright infringement (Claim 1), trademark violation (Claim 2), and injury to business reputation (Claim 3).

In addition to damages, plaintiff seeks an injunction requiring defendants to digitally remove the statue from all future distributions of the TV program. Courthouse News and Reuters report on the lawsuit. [Thanks To Tom Rutledge for the lead.]

UPDATE: According to a Nov. 21 post by Lucien Greaves, the suit has been amicably settled, with the unique elements of the Satanic Temple’s Baphomet statue acknowledged in credits of episodes already filmed.

DC Circuit: Allocation of Royalties To Religious Broadcasters Was Arbitrary and Capricious

Settling Devotional Claimants v. Copyright Royalty Board, (DC Cir., Aug. 14, 2015), is a suit involving a dispute among television ministries on how to divide among themselves the royalties paid by cable operators for re-transmission of the ministries’ television broadcasts for the years 2000-2003.  Under federal law, cable operators can retransmit programs initially aired on a broadcast station without further permission, but must deposit a royalty amount set by statute.  Each year the Copyright Royalty Judges determine how the royalties should be distributed. In an earlier phase of the proceedings the Judges determined the the total amount that should be allocated to devotional-religious programs. This phase of the proceedings involved the distribution of that amount among two competing groups-- a group of 23 ministries whose copyright broadcasts were distributed (the Settling Devotional Claimants) and a second group (Independent Producers Group) that claimed to represent 7 other ministries, but was held by the Royalty Judges to properly represent only four others. The Royalty Judges rejected the methodologies urged by both parties and instead used its own approach to allocate the royalties between the two groups.  The Court of Appeals held that the Royalty Judges' allocations were arbitrary and capricious, saying in part:

[The Devotional Claimants]  argue that, after the Royalty Judges ... simply split the difference between the two parties, and that decision was arbitrary and capricious and unsupported by substantial evidence. We agree with the Devotional Claimants..... King Solomon was not subject to the Administrative Procedure Act; the Royalty Judges are. 

9th Circuit En Banc Reverses Injunction Agaianst "Innocence of Muslims" On YouTube

In an en banc opinion in Garcia v. Google, Inc., (9th Cir., May 18, 2015), an 11-judge panel of the 9th Circuit dissolved a 3-judge panel's preliminary injunction (see prior posting) that had required Google to take down from YouTube all versions of the controversial video Innocence of Muslims that included the performance of misled actress Cindy Lee Garcia.  The injunction was sought by Garcia after she received death threats because her dubbed-over performance appeared to be criticizing the Prophet Muhammad.  Garcia claimed a copyright interest in the performance. The en banc majority held that the law and facts do not clearly favor her claim to a copyright in her acting performance, saying in part:

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act

Judge Watford issued a concurring opinion and Judge Kozinski dissented. Electronic Frontier Foundation has further analysis of the decision.

Faith Healer Sues Atheist Activist Claiming Misuse of YouTube Video

In Arizona last week, Adam Miller, a "spiritual transformational healer," filed a federal lawsuit against Joel Guttormson, an activist in the atheist and transgender communities, who allegedly obtained and misused Miller's promotional video by hacking into a private YouTube account.  The complaint (full text) in Miller v. Guttormson, (D AZ, filed 4/28/2015), alleges that Guttormson misappropriated a video titled "Healer Adam Miller – Explanation of the Healing Work," inserted into it allegations attacking the truthfulness of statements in it, and uploaded it to Guttormson's own publicly available YouTube channel under the title "Adam Miller: Con Artist." At the end of the doctored video, Guttormson promotes a website and an online atheist audio bookstore. The doctored video then appeared at the top of any Google search for Adam Miller. Guttormson subsequently uploaded two additional videos attacking Miller to YouTube. The complaint alleges copyright infringement, intentional interference with business expectancies and defamation. Techdirt blog criticizes the lawsuit at length.

Saudi Artist Sues Watch Company For Appropriating His Hajj Etching

Luxembourg's i24 News reports today that Saudi artist Ahmed Mater has filed suit in France's Grand Instance Court seeking $1.5 million in damages against the watch company, Omega.  Mater says that Omega used his photogravure "Magnetism (Photograuve) III" without his consent in an ad for the company's new Seamaster Aqua Terra watch.  Mater's etching-- intended to suggest pilgrims on Hajj moving around the Kaaba-- shows a black cubic magnet surrounded by neat steel filings.  Omega says its intent was to advertise the watch's anti-magnetic properties.  Mater's lawyers say Omega has led the public to believe that Mater is mocking religion.

9th Circuit En Banc Hears Arguments In "Innocence of Muslims" Case

The U.S. 9th Circuit Court of Appeals yesterday, sitting en banc, heard arguments in Garcia v. Google Inc.  Ten of the 11 judges on the en banc panel heard the oral arguments live.  It was announced that Judge Berzon was unable to be in the courtroom, but would listen to the video of arguments at a later date. The video of the full oral arguments is available on the 9th Circuit's YouTube channel.  In the case, the 3-judge panel, in a 2-1 decision, held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The suit was filed by Cindy Lee Garcia who acted in a portion of the film, had received death threats because of it, and claimed that the video posting amounted to a copyright infringement of her performance. (See prior posting.)  All the pleadings and amicus briefs filed with the 9th Circuit are available here. Courthouse News Service reports on yesterday's oral arguments. [Thanks to How Appealing for the lead.]

Megachurch Leader Threatens To Sue Rappers Over Remix

The New York Daily News reported Thursday that Dallas megachurch leader T.D. Jakes is threatening to sue popular rappers Young Jeezy and Kendrick Lamar over use of a 24-second clip from a Jakes' sermon in a remix of "Holy Ghost." Legal experts suggest that the fair use doctrine makes Jakes' claim a difficult one.

Christian Hip-Hop Group Sues Top Music Star For Copyright Infringement

The St. Louis Post Dispatch reports that earlier this week the members of the Christian hip-hop music group Flame filed a federal copyright infringement lawsuit against pop singer Katy Perry, Capitol Records and others involved in creating Perry's "mega-hit" song and music video, Dark Horse. The complaint (full text) in Gray v. Perry, (ED MO, filed 7/1/2014), alleges:

By any measure, the Dark Horse song also constitutes an infringement of Plaintiffs’ copyright in their Christian gospel song Joyful Noise, released five years before Dark Horse..... And by any measure, the devoutly religious message of Joyful Noise has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in Dark Horse. Indeed, the music video of Dark Horse generated widespread accusations of blasphemy.... 

Rapzilla has comparative sound clips from the two songs designed to show that they differ only in pitch and tempo. The lawsuit asks for damages and injunctive relief.

Court Accepts Fair Use Defense In Copyright Claim By Prominent Christian Speaker

In Caner v. Autry, (WD VA, May 14, 2014), a Virginia federal district court dismissed copyright infringement claims brought by Ergum Caner, the former dean of Liberty Theological Seminary and former vice president of academic affairs at Arlington Baptist College. Caner was raised in Ohio. His father was a devout Muslim. During high school he became a born-again Christian.  Caner spoke widely to military and church groups on how Muslims in the Middle East would view U.S. Marines from the perspective of jihad.  He sued Jonathan Autry, formerly a student at Liberty University, over blog posts that linked to YouTube videos featuring Caner. The posts attempted to expose as untrue Caner's claims that he was raised as as Muslim in Turkey-- a claim he made in numerous speeches before church and military groups.  The court accepted defendant's fair use defense, saying:

Plaintiff has filed this suit to suppress legitimate criticism of alleged contradictions in the narrative that supported his rise to prominence. The purpose and character of Defendant’s use weigh strongly in favor of finding fair use.

Correction [thanks to Commenter]: Caner is now  President of Brewton-Parker College in Mt. Vernon, Georgia. The post has also been corrected to spell Caner's name correctly.

Contempt Motion Filed Against Google Over "Innocence of Muslims" Video

As previously reported, last month in Garcia v. Google, Inc.,  the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube.  The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. According to Hollywood Reporter, on Tuesday Cindy Garcia filed an emergency contempt motion (full text) with the 9th Circuit. The motion claims that a version of the video is still available on Google's worldwide platform, and is viewable in Egypt where a fatwa was issued for Ms. Garcia's execution.  According to the motion, Google insists that Ms. Garcia has the burden of informing it of every URL on its platforms that has the video before Google has an obligation to take it down. The motion also claims that Google has not taken down any copies of the video, but has merely disabled it so that the viewer sees a thumbnail and an explanation from Google.  In the meantime, Google is seeking en banc review of the 9th Circuit's decision.

Google Denied Stay of Order To Take Down "Innocence of Muslims", But En Banc Rehearing Is Possible

As previously reported, last month in Garcia v. Google, Inc.,  the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube.  The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. The decision was filed on Feb. 27, but apparently several days before the public release of the opinion the court ordered Google to take down the video.  In a Feb. 27 motion, Google sought a stay pending a petition for an en banc rehearing (full text), saying:

The Court last Wednesday issued a sealed order directing that Defendant-Appellee Google Inc. take down “all copies” of the video "‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control" and that Google "take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms." Google has complied with the Court’s order, but in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review.

In an Order (full text) issued Feb. 28, the court denied a stay and ordered Google to comply with the take down mandate within 24 hours, but added that "this order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance."

In the latest development, yesterday the court issued an Order (full text) stating that one judge has requested a vote on whether to rehear en banc the request for a stay. The court gave the parties until March 12 to file briefs on whether an en banc rehearing should be granted. [Thanks to Edward Lee via CyberProf listserv for the lead.]

9th Circuit: Court Should Order Removal of "Innocence of Muslims" From YouTube

In Garcia v. Google, Inc., (9th Cir., Feb. 26, 2014), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The suit was filed by Cindy Lee Garcia who acted in a portion of the film.  As explained by the court:

The film’s writer and producer ...cast Garcia in a minor role [in a film with the working title "Desert Warrior."] Garcia was ... paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage.  An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

As summarized by the court:

The panel concluded that the plaintiff established a likelihood of success on the merits of her claim of [copyright] infringement of her performance within the film because she proved that she likely had an independent interest in the performance and that the filmmaker did not own an interest as a work for hire and exceeded any implied license to use the plaintiff’s performance.

Volokh Conspiracy has an extensive analysis of the decision. (See prior related posting.)

UPDATE: On Feb. 28, the 9th Circuit issued a revised preliminary injunction (full text) making it clear that the injunction "does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance." [Thanks to Volokh Conspiracy for the lead.]