RMT calls off Tube Strike

If you're looking for news on the April 2008 Tube Strike please click here

Although there was a three-to-one vote in favour of strike action on February 19 by RMT's 6,500 London Underground members, you'll be pleased to hear that threatened strike has been called off. LUL have agreed to the four per cent wage increase, with no strings attached.

The RMT's site says "the breakthrough was due to the fact that the union's LUL members had shown they were not prepared to be pushed around."

Union leader Bob Crow added: "Management's decision has, at last, opened the way for the implementation of last year's pay deal. If London Underground management had not attempted to attach strings to the deal in the first place then we could have drawn a line under this matter more than a year ago."

The three-year agreement runs from April 2006 to April 2009 and provides for the following pay increases:

* Year 1 (payable from April 2006): 4 per cent
* Year 2 (payable from April 2007): RPI+0.5 per cent (or 3 per cent whichever is greater)
* Year 3 (payable from April 2008): RPI+0.6 per cent (or 3 per cent whichever is greater)

All Underground staff are also eligible for a bonus of £250 or £500 each year if customer satisfaction targets are met or exceeded. Ah that's just reminded me to put in my second customer charter refund claim of the day, but I digress.

Sheriff Ken said "This three-year agreement is great news for both Tube passengers and staff and is a real landmark achievement. Passengers will benefit from the stability provided by the first three-year deal for all staff in the history of the Underground."

Walkers Tube Map

No, crisp giant Walkers haven't decided to sponsor the Tube Map, but a group of postgraduate students from Central St Martin's College of Art have put together a map for zone 1 which shows the walking distances between London Underground Stations. It's a pretty impressive project which they only had a week to put together and they managed to meet their aim of "creating a buzz about a topic to affect positive change."



Tube map "fans" may remember that in 2003 rodcorp put together a map of the entire network, which showed when it would probably be quicker to walk rather than take the Tube and there's obviously comparisons to be made.


The students hope that their project will cut overcrowding on the Tube and encourage more people to switch to a healthy & environmentally friendly transport alternative - ie walking. Whereas Rodcorp's map points out that in a number of cases it's simply quicker to walk and he sees it as "an interesting exercise".

Rodcorp's map (which was mentioned on BBC London News) is based on station to station distances, whereas the students spent one week walking between Tube stations and noting how long it took.

Sara Palocios said "It was a very hectic week and we were really tired by the end of it." She admits that some timings may challenge slower walkers and says they were calculated on a "moderate speed". "For example I walked between High Street Ken and Notting Hill Gate in 12 minutes at quite a fast rate. It's not a relaxing walk but as if you were in a bit of a hurry".

The students were featured in London Lite and The Evening Standard yesterday and have been handing out the maps at Holborn Tube. According the papers they now plan to patent the map after making some changes to deal with copyright issues.

Coincidentally, coming home last night I noticed that Flora are running a campaign on the side of buses with the message "Could you walk it quicker?".


Apparently they are on taxis too. But I wonder if the Tube would ever be brave enough to carry this type of advertising wrapped around a whole train?

There are a number of posters in carriages encouraging people to walk between Leicester Square & Covent Garden mainly to ease congestion rather than for speed or health reasons though. Perhaps if Rodcorp's and the students maps become more popular, we may find TfL endorsing the maps in some way or even creating official versions. Although I'm sure there'd be various legal riders on the map about when the walking was carried out and no end of argument about how fast an average walker walks.

Tube Delay Refund Record

TfL pays five million quid in three years

I often wondered how many people used the Customer Charter refund for delays on the Tube and now I know. Yesterday figures were released which showed a record number of claims for delays on the London Underground. The total number of claims almost doubled from 261,725 in 2004 to 447,626 last year.

The Metropolitan line had the highest number of complaints last year, with 97,773 passengers applying for refunds, up from 60,853 in 2004 - but down from 111,504 in 2005.

The Central line was also poor with 92,336 refunds last year, compared with 58,783 in 2004, and surprsingly the Northern line was third on the list with 56,805 claims, compared with 29,755 two years before. Perhaps delays are such an everyday occurance on the Misery Line that it becomes a normal part of the journey and regular commuters can't be bothered.

The number of refunds claimed from commuters using the Piccadilly line more than doubled, from 25,282 in 2004 to 51,619 last year.

The Waterloo & City line was the only line to show a fall - but that's probably because it wasn't running for much of the time and was closed for five months.

Stephen Hammond, MP for Wimbledon and the Conservative transport spokesman who uncovered the figures said they showed the Mayor was not delivering value for money.

He said: "Ken Livingstone talks a great deal about his £10billion investment plan for London transport. These figures show just how little he has achieved with all that money. The Mayor's council tax precept keeps on rising and fares have gone through the roof but commuters' journeys just get worse."

According to the Evening Standard TfL were unavailable for comment. I would urge people to keep claiming when they get delayed. Less than half a million claims in a year is still a drop in the ocean considering there were 971 million passenger journeys in 2005/2006. This year I've already received £20 from the Customer Charter refunds for delays on the District Line and it's not even two months into the year. It takes about three minutes to make your claim and at the moment the refunds have come back within a few weeks.

Not on the London Underground

Roundels not on the Tube

Thanks to Jon Allen for managing to spot a very realistic looking Abbey Road in Seoul. He said "It's for a cafe/bar in the Apgujeong district of Seoul."



Also Lewis' spot in York, means that TfL's lawyers won't have too far to travel if they think this is an infringement of the use of the roundel:



Lewis said: "Slight rip-off of the Harry Beck classic here; showing locations of various pubs in the York area. I think the lines are supposed to be bus routes, but they're numbered and coloured wrong if so..."

Thanks to both, and please, keep them coming in so I can add to the growing Flickr set.

Contracts Involving Uncopyrightable Ideas

Copyright does not protect "ideas". It also doesn't protect facts. But if parties agree by contract that one is going to pay another for an idea, that contract may be enforceable. In my mind, prior to doing any research, the lead case on contracts involving ideas is Buchwald v. Paramount Pictures, 1990 WL 357611 (Cal. Superior), 13 U.S.P.Q.2d 1497, 17 Media L. Rep 1257 (Cal. Super. L.A. Co. 1990)(not reported in Cal. Rptr.). When I say "in my mind" - the story of columnist Art Buchwald submitting a 2.5 page treatment to Paramount Pictures, Paramount agreeing to pay him for the idea, and then reneging by making a film called "Coming to America" starring Eddie Murphy based on that idea without paying Buchwald is so memorable.

But when I conducted an "ALLFEDS" search on Westlaw, I found only one case citing the Buchwald case. Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir. 1994). I didn't check the state database. But there were 68 secondary sources citing Buchwald. So it's a case in which the peanut gallery of legal commentators have great interest, but in which the courts have no interest. Over the last month I read Fatal Subtraction: How Hollywood Really Does Business (The Inside Story of Buchwald v. Paramount) by Pierce O'Donnell and Dennis McDougal (Doubleday 1992). It's a pretty good story for a lawyer to read in terms of case strategy, not giving up, and taking risks on some long shot legal theories where a client has really been wronged. O'Donnell had Buchwald's contract involving the story idea upheld and enforced, then turned around and invalidated its "industry standard" net profits provisions as unconscionable (there is a Buchwald II decision).

Arthur Miller, in Common Law Protection for Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703 (January 2006) argues that courts generally require "concreteness" and "novelty" to enforce agreements involving ideas. He provides a good survey of the case law in the area and argues for more federal protection. He claims a gestation period for the article of 56 years - since he was a 2L.

In Cavagnuolo v. Rudin, 1996 WL 79861 (S.D.N.Y.) the court observed that California has no novelty requirement for contracts involving ideas (citing Desny v. Wilder, 299 P.2d 257 (Cal. 1956) nor does New York (citing Apfel v. Prudential-Bach Securities Inc., 81 N.Y.2d 470 (1993).

Where owners of a database used a "shrink-wrap" license to bar licensees from using the database for commercial mailings, the provision was upheld. ProCD Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Michigan law doesn't require novelty in contract to submit ideas. Wrench LLC v. Taco Bell, 256 F.3d 446 (6th Cir. 2001). In a case criticized by Miller, at least one court let a contract block reverse-engineering because it was forbidden by the license agreement. Bowers v. Baystate Technologies, Inc., 320 F.3d 1317 (Fed. Cir. 2003)(permitting a party to "contract away" a fair use defense of reverse engineering).

California law will create an implied in fact contract in idea submission cases. Levin v. The Gap, 1998 WL 915897 (S.D.N.Y.). But California will require evidence of industry custom to pay for ideas before doing so. Dallier v. Levi Straus & Co., 86 F.3d 1149 (4th Cir. 1996)(unpublished). But for a court to let a plaintiff pursue an implied-in-fact contract, it should be set forth in the complaint. Willis v. Home Box Office, 57 Fed. Appx. 902 (2d Cir. 2003)(unpublished summary order).

Courts struggle with the problem of preemption: the extent to which Copyright law supplants state law in the area of protecting ideas. The law of trade secrets is a related area -protecting "ideas" unprotectable by copyright by keeping them secret or binding a select few through confidentiality agreements.

London Underground Fashions Victims

Fashion Victims on the Tube

It's Friday and time again for the TFV's or Tube Fashion Victims, commuters spotted on the Underground with their own special look.

Backwards Coat

A guest post this week snapped by John Spier at Kings Cross


He said, "It appears to be a coat with the buttons on the back!". Which begs the questions - did it have matching buttons on the front? Or perhaps there were no buttons on the front and she was going for the straitjacket or rather straitcoat look.

When your man bag's too small

Nice Metrosexual look going on here:


Gucci designer belt, check. Calvin Klein underwear showing at just the right level, check. Over shoulder man bag, check. Box fresh white trainers, check. Woolly gloves hanging from belt. Erm, not so sure.

I suppose it puts you in a bit of a quandary when your pockets are too small to hold your gloves. Particularly if you don't want any disturbance to the smooth lines of your skinny jeans or denim jacket. But why didn't he put them in his man bag? I could be doing him a disservice here, as it might not be a man bag, but a camera bag. Although judging by the rest of the metrosexual look, I think my first instinct is correct. Perhaps it's an unusual winter version of the hanky code.

That's it for now. The previous set of victims can be found here and the complete picture gallery can be seen on the following Flickr set.

Metro's Brit Blog Awards

Speaking of Metrosexual

If you picked up yesterday's Metro you'll see that they are running some awards for the best British Blogs. Bless their little cotton socks as Metro suggested a number of blogs including this one as possible nomination fodder.

They said "With millions of blogs out in the wild, picking out 'the best' is simply impossible (and obviously, we don't want to influence your nominations for the awards). But here's some British blogs that a lot of people like, that we like, and we think you might too".

To nominate the blogs you like or submit your own (there are eight categories Arts and Entertainment, Fashion, Sport, Politics, Travel, Technology, Youth, and Weird & Wonderful) visit this link.

Tube Challenge Record Broken

Well done to Lars & Håkan

What was a tiny feature in The London Paper last night was actually known to intrepid die-hard Tube Challengers many months ago. On the 26th September Håkan Wolgé and Lars Andersson from Sweden, set a new record breaking time of 18 hours 25 minutes and three seconds for "Travelling the London Underground in the shortest time" - this means all 275 stations on the Tube.

Guinness World Records confirmed the record on the 6th November (which beat the previous holders of the record - Steve Wilson and Samantha Cawley - by just over 10 minutes) and now this has slowly made its way into the London press.

Neil (a former record holder himself and moderator of the Tube Challenge Forum) joined them for in the evening and took the following picture:


Håkan gives some of the highlights/lowlights of spending an entire day on the Tube:

"I had a close brush with doors closing around my knee, with Lars onboard after a communication glitch between us. After an eternity (probably at least 10 seconds) of me gesturing that I was stuck, the train driver finally conceded and reopened the doors. However, she didn't start immediately but spent another 10 seconds to give me a verbal bashing over the speakers"

"When all the Arsenal/FC Porto fans invaded the train and we realised we would lose a few valuable minutes and subsequently would miss a crucial change - which we did (probably cost us the 23:38 finish)"

So from a 5am start at Amersham they finished at 23:53:11 at Heathrow Terminal 1,2,3 catching the very last train of the day, as the one scheduled for 8 minutes later never arrived.

Hakan concludes: "Since our result was first known, one question has been put to me more times than any other: - 'How fast do you think it could be done?' Since my entire route is based on a statistical model I think I may have a good guess at it. As I've written numerous times, we expected a time of 18h10m, provided there were no extraordinary delays......On a lucky day I think it could be done in 18 hours flat."

So the challenge is out there waiting to be broken again. Visit the busy Tube Challenge Forum to see if you've got what it takes.

Smelly Tube Part Two

London Bridge is falling down

Looks like Alan Connor has found a good contender for the worst smelling Tube station. In October, I found a New York smelly subway station / Google map and asked what the worst smelling station on the London Undeground might be. From your comments Bank, Angel and Waterloo appeared to be the worst.


As Alan says "What with the sewage and the roof falling in, London Bridge is sometimes better avoided."

Perhaps the sewage is also causing the reduced escalator service there too.

London Underground Interview Question

How would you reply?

I didn't quite know whether to laugh or cry when I saw the following question posted on Yahoo! Answers. The guy below appears to be going for an interview at London Underground and needs help with the following question. I'm assuming that the applicant has slightly abbreviated the question:

Please help me pass london underground interview. 1,list action u wud take.2,xplain what u hope 2 achieve.?

imagine u are workin at d barrier of a london station.an elderly tourist wit limited english comes up 2 u.he is carryin a number of bags n he is able 2 comunicate that he is lost and needs to get 2 heathrow.
1, please list d actions that u would take
2, explain what u would hope 2 achieve through these actions

At the time of blogging - you have 4 days left to help the poor person out who also appears to have fairly limited English themselves. Also looking at their background or rather the only other question they've asked, maybe their other interest has affected their ability to type properly.

Any TfL staff reading this, if you end up interviewing him - please don't ask what else he thinks he can bring to the position.

Copyright Injunctions - Fruit of the Infringing Tree Doctrine (Ch 11)

Chapter 5 of 17 U.S.C. provides for remedies for victims of copyright infringement. Section 502 permits injunctions:

§ 502. Remedies for infringement: Injunctions
(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.
(b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office.

Although the statute appears to give courts wide discretion in determining what terms of an injunction are reasonable, courts have narrowly tailored the available relief. The majority view is set forth in Kepner-Tregoe, Inc. v. Leadership Software, 12 F.3d 527 (5th Cir. 1994). That case was a "reverse-engineering case" in which a substantially similar infringing copy of licensed materials was created by a licensee. Then the licensee "surgically removed" infringing portions. The district court found, and the Fifth Circuit affirmed, that this "child of the infringement" could be enjoined from distribution because it still retained substantially similar selection and arrangement. But the Circuit court unequivocally struck down any attempts of the district court to enjoin future distribution of versions that might be non-infringing. A number of courts have struck down attempts to punish the infringer's "head start" gained by making infringing intermediate copies. See Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772 (5th Cir. 1999); Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000). The Fifth Circuit made clear in Kepner-Tregoe that even if a licensee breached a license agreement by engineering its own competing software, that portion of the license agreement forbidding such activity might be void because such contracts are preempted by the Copyright Act. 12 F.3d at 538 citing Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 268-70 (5th Cir. 1988). Overreaching with your copyright, such as using it to protect uncopyrightable devices, is "copyright misuse" and is grounds for striking down an injunction. See, e.g., Alcatel, supra.

A plaintiff may have success in getting courts to enjoin non-copyrightable benefits or "fruits" gained from its infringing actions. See, e.g., Epic Metals Corp. v. Souliere, 181 F.3d 1280 (11th Cir. 1999). However, the majority of cases reject this approach, particularly in the area of reverse engineering where an infringing copy was made to develop a competing product or compatible device. See, e.g., Kepner-Tregoe.

Practice Tip for Lawyers: In seeking an injunction, there is a temptation to ask for the moon. A narrowly-tailored request for relief that focuses on actual infringing activities and copies stands a greater likelihood of being granted. Overreaching, even where supported by contractual language may backfire and subject you to claims of copyright misuse, particularly where the contract contravenes the Copyright Act.

Transport Commissioner on MySpace?

Hey Peter thanks for the add

In a story that's clearly too good to be true, the Evening Standard gleefully reported that Transport Commissioner, Peter Hendy had a MySpace page and "has been spending evenings, weekends - and even part of his working day - in the chatroom with teenagers on the MySpace website."


The paper continued "Mr Hendy also posts his official TfL biography together with portraits of himself, the TfL logo and a picture which he has entitled "Me With Some Of the Buses".

TfL confirmed last night that the site was genuine.

"It is not a spoof," a spokesman said. "Any dialogue with Londoners to promote our policies is welcome."

Peter had apparently been getting into discussions with other MySpace users about the Tube service. "7 of Hearts" complained "your underground staff at Eastcote station, Hillingdon, were mean to me...What do you propose to do about it?" Within minutes, Mr Hendy apparently replied: "When I get to work on Monday morning I'll sort this out, I'll either sack them or give them a good spanking (not myself but someone lower down the food chain than me.) All the best, Peter Hendy."

Were alarm bells not ringing with The Standard at that point. Apparently not, as the paper then stated that TfL said that particular exchange with "7 of Hearts" had not been written by Mr Hendy and they would investigate.

I wonder who the person was at TfL who had confirmed the authenticity of the site. Now you'll see that whoever built the site had to fess up that it was a spoof. Well quelle surprise!

"Since the recent appearance of this account in the Evening Standard, we feel it is appropriate to point out This is a SPOOF myspace account. Purely based on our Love for Mr Hendy - he is in no way affiliated with this account, nor is Transport for london. Please direct any questions to TFL website."

Expect to see Ken Livingstone's MySpace page coming soon!

Tube Baguette

No Pants Tube Day?

The following is from one of my colleagues at work who does a similar journey home to me:

"My girlfriend and I were travelling back home on the Piccadilly Line. I was a Saturday afternoon so not too busy, but loads of couples, some kids and a bunch of girls. We were standing by the doors and my girlfriend was trying to attract my attention by tapping me in the side with her water bottle...

Being a bloke, I didn't pick up straight away, but when I finally turned around. She made look at the guy about a metre away in the middle of the carriage. He looked a bit dopey and I couldn't work out what the fuss was about until I looked down..

The guy was wearing some grimy trackie bottoms and had what can best be described, before watershed, as a baguette at half mast poking inside his trousers! He was pretty obviously going commando!

It was hilarious/distressing/disturbing all at once! Almost like he was wearing something as a joke. But he just stood there and stared at people then sat down opposite the poor girls and arranged himself.

The funny thing was everybody had noticed but everyone was making up conversations (rhubarb rhubarb rhubarb...) and trying to avoid eye contact.

I'm not sure if this guy was all there... or whether he was actually a pervert.

He was very scruffy and obviously had taken zero measures to cover up what nature had obviously "blessed" him with. I wonder if the Tube keep files on people like that if reported?"

I'm sure they probably do. Not long ago FridayCities reported a man who was doing some pretty unsavory things with his trouser snake into a copy of Metro. The reporter said "I sent this as a letter to The Metro as I know they like to hear nice stories of people sharing their paper, using it to mop up spills etc. Unfortunately they did not see fit to publish it."

Does anyone else have any similar stories?

Tube Valentine

Coming home this evening, the Tube had more than its fair share of passengers carrying single red roses and heart shaped balloons to celebrate Hallmark Day, sorry Valentine's Day. But the following was my favourite


Initially I thought, what a last minute merchant, writing out his Valentine's card on the Tube. But I was impressed that he spent so long writing it. Perhaps he was scribing a poem or a short story, but it was clearly more than "Love you lots". He also spent a good few minutes reading what he had just penned to make sure it fitted the bill. Perhaps the lucky person was also going to receive the contents of the Office bag on his lap.

Driver's Eye View

Snowy Tube

Many thanks to "traindriver" (Richard) - who sent the following picture taken from his train cab, which proves that some trains managed to run in last week's snow:


It's an Eastbound Central Line train running between Buckhurst Hill and Loughton.

Il fait beau dans l'metro

Thanks to Marc Mentzer from Canada who sent me a link to a promotional video from Montreal launching the Metro in 1966


Marc said "The title, and the recurring words to the song, translate into English as "It's beautiful in the metro." Occasionally they show a brief image of a bus driver who adds the words 'and on the bus.' Actually, the metro is indeed beautiful – the stations were designed in a very dramatic modern style that is (or was) quite appealing."

Here are the lyrics if anyone fancies a sing along.

Il fait beau dans l'métro
Tout le monde est gai tout le monde a le coeur au soleil

Il fait beau dans l'métro
Plus ça va vite plus il fait beau dans nos oreilles

Il fait beau dans l'métro
Y'a du ciel bleu dans les yeux contents de tout le monde

Il fait beau dans l'métro
Car aujourd'hui notre métro c'est le plus beau du monde

Il fait beau dans l'métro
Et dans l'autobus c'est son p'tit frère

Il fait beau dans l'métro
et l'autobus
Peux-tu en dire autant dans ton auto ?

Ah ah ah ah ah

Il fait beau dans l'métro
Notre métro c'est le plus joyeux
et comme il chante c'est tant mieux
Vive le métro
Oui
Il fait beau dans l'métro

The internet translation makes it seem like it's a weather forecast for the Metro with beautiful blue skies and where everyone's heart is sunny.

It's like a cheesy Eurovision Song contest entry and it would be fab if we had the same for the Tube.

Tube Strike Talks Adjourned

According to Bob Crow "the golden opportunity" to resolve the latest pay dispute didn't go too well. London Underground's managers and union reps met to discuss the pay rise and although LU said talks were "constructive" no agreement was struck.

But there's still hope, as the LU spokesperson said "London Underground again put forward what is a very fair, final three-year pay and conditions offer.

"It is a three-year deal with an above inflation pay rise in each year, plus a cash bonus for all staff if customer satisfaction targets are met or exceeded.

"We are hopeful that we can reach an agreement without the need for industrial action."

RMT leader Bob Crow said "Our members have been waiting since last April for the pay rise that is due to them, and all we have sought for the last year is the opportunity to negotiate seriously."

The result of the pay ballot is due later this month, so watch this space

Copyright for Labor Lawyers: The Work for Hire Doctrine (Ch 7)

Does an employee, independent contractor, or corporate officer own original copyrightable materials authored by that person in conjunction with the relationship to the employer? We look to 17 U.S.C. Section 101 (the Copyright Act's definitional section) as a starting point:

A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. * * *

So, the employer owns the work if it is made by an employee "within the scope of employment" or if there is a written agreement (for certain works). To determine whether an individual was an employee, we look to the federal common law of agency, which was spelled out in a copyright case involving a sculpture called Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The factors (the "Reid factors") considered include:
- the hiring party's right to control the manner and means by which the product is accomplished;
- the skill required;
-the source of the instrumentalities and tools;
- the location of the work;
- the duration of the relationship between the parties;
- whether the hiring party has the right to assign additional projects to the hired party;
- the extent of the hired party's discussion over when and how long to work;
- the method of payment;
- the hired party's role in hiring and paying assistants;
- whether the work is part of the regular business of the hiring party;
- the provision of employee benefits;
- tax treatment of the hired party

The Second Circuit in Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111 (2000) applied the Reid factors (the federal common law of agency) to determine whether a hired person is an employee or independent contractor for purposes of applying the Civil Rights Act of 1964, 42 U.S.C. Section 200e ("Title VII"). In Eisenberg, the court noted that the parties could agree whether or not an employee would have intellectual rights to copyrightable work product, but that Title VII antidiscrimination protections could not be bargained away.

The work-for-hire provisions of the Copyright Act have been applied in a wide variety of employment contexts:

- rejecting a claim that the author of a screenplay was an employee of a purported co-author/co-producer, Price v. Fox Entertainment Group, Inc., 2007 WL 241390 (S.D.N.Y)(SAS)

- rejecting a claim that a woman who walked into a recording studio and sang a countermelody for Jay-Z created a "work-for-hire" (applying the 5 "strongest" of the 13 Reid factors) Ulloa v. Universal Music & Video Dist. Corp., 303 F. Supp.2d 409 (S.D.N.Y. 2004)

- rejecting a teacher's claim that his Fourth Amendment rights to be free from illegal seizures was violated by confiscation of teaching materials created while he was a teacher and finding no copyright interest, Shaul v. Cherry Valley-Springfield Central School Dist., 363 F.3d 177 (2d Cir. 2004

- in a case involving the executor of her will, analyzing choreographer Martha Graham's relationship to her eponymous foundation at varying points in her career and making different findings as to whether works were "works-for-hire" depending on how she worked and was paid during her lifetime, Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004)

- permitting copyright infringement claims against former employee who took, modified and sold on behalf of competitor a copy of software, Jamison Business Systems, Inc. v. Unique Software Support Corp., 2005 WL 1262095 (E.D.N.Y.)

- denying summary judgment motion made against police union employee who wrote songs such as "Rudy the Fox" and "Badillo Beat" for childhood abduction awareness programs. Brower v. Martin, 446, F. Supp.2d 232 (S.D.N.Y. 2006)

As former employers increasingly seek to use the Copyright Act's damages and attorneys fees for theft of corporate materials, labor and employment lawyers will be confronted with these issues.

'Snow joke on the Tube

What happens in four inches of sticky snow


I lost count of the times I heard "Ladies and Gentlemen, there are delays on the .....(insert virtually every line)" yesterday. London's biggest snowfall in 7 years (or 15 if you go by This is Local London) was accurately predicted as early as Tuesday. Even down to the right day. Yet the transport system still couldn't cope because the snow was too sticky. The Met Office said that snow was unusually large. London Lite gleefully reported that "These giant snowflakes with their increased moisture are sticking together far more than expected, causing it to settle quicker and deeper".

Geoff Pope, chair of the London Assembly transport committee, said there was "no excuse" for major transport disruption due to bad weather.

"The Met Office has given ample warning of snow, and one would expect that Transport for London has taken steps to ensure that trains can still run without disruption."

The Piccadilly and Bakerloo lines were partially suspended throughout the morning with breakdowns and signal failures caused by snow. There were also delays on the Circle, Metropolitan, Hammersmith & City, Central and Jubilee Lines. Inevitably the Northern Line had problems and was suspended between Morden and Kennington.

Temperatures of minus 5C overnight are expected to cause ice on Tube and train tracks so we may find that the wrong type of ice is a problem today. Network Rail and London Underground are putting more engineering staff on duty to try to keep services running.

London Underground Fashion Victims

Fashion Victims on the Tube

It's the regular Friday look of people on the Tube who've taken a style and made it their own.

Allright ducks

Rather than post the many many Ugg variations I've seen this week, the following boots stood out for me:


The combination of nursery look ducks, with denim and suede toe caps was just a little too much of a mix for me. Not helped by very loose trousers tucked inside. But if you're going to buy boots with ducks on them, I suppose you wouldn't want them hidden.

Padlock Bling

Luckily James Purves was able to snap the following on his camera phone


Is it a charm bracelet with an oversized "charm"? Or just a interesting way of making sure your watch doesn't get swiped on the Tube?

That's it for now. The previous set of victims can be found here and the complete picture gallery can be seen on the following Flickr set.

Second Life's Tube

Virtual Tube systems

I know close to jib all about Second Life, the virtual world which has millions of people trading, buying, selling and generally living another life online. However, thanks to Andy Green, I've learnt that there's a Tube station on Second Life too.


Please tell me that this is just a fascia though and that there isn't actually a Tube line that you can travel on? Or is it something that could potentially develop if people wanted to "build" one? Who would own it and would you have to pay to travel on it? I'm assuming there's a currency in Second Life, but are there virtual Oystercards? Personally I can't think of anything worse than travelling on a virtual underground. The real one is bad enough, so why would you want to put yourself through this in a virtual world?

Speaking of simulated Tube experiences, Londonist have posted a great video by Ben Cowell, from a band called The Schla La La's with animated Lego characters getting on the Tube at the beginning, giving each other some high fives



and then break dancing on the platform before the train pulls in.


Just like real life!!

Late Tubes put on hold

Sheriff Ken and Unions can't agree to stay out late

Looks like plans to have the Tube running for an extra 30 minutes at night on Fridays and Saturdays have been put on ice, as Ken Livingstone says the rail unions pay demands to keep it running are "prohibitive".

We're likely to still see plenty of these

Ken had planned to get Tubes running on Friday and Saturday nights until 1am from May 2007. This is after a public consultatation which attracted 54,000 responses, with the majority in favour of the late night service. The changed timetable would have meant a boost London's "late night economy" (pubs, clubs & eateries). Although British Transport Police were gearing up to cope with the extra "business".

Ken offered what he claims to be an "incredibly generous" salary deal that guaranteed staff an extra three days annual leave. But both the RMT and Aslef have turned down the three year package which includes a four per cent initial pay increase and above-inflation increases in following years.

Livingstone is standing his ground and says of the offer "Two of the unions, TSSA and the British Transport Operators' Guild, put the proposed deal to their members who have overwhelmingly accepted it. TSSA members backed the deal with over 80 per cent of their members in favour.....

"ASLEF negotiators have rejected the offer we have made, including the three days’ extra holiday, without putting it to their members. ASLEF are asking for more pay in return for working half an hour later.

"The extra holiday offered to drivers to compensate for the unsocial hours caused by later running on Fridays and Saturdays is an extremely reasonable offer. I believe that if ASLEF and the RMT were to put this offer to their members there would be considerable support for it.

"I have no intention of increasing it. We want to introduce late running and I remain committed to it but we cannot do it at any price for Londoners. If the price is too high it is better to suspend it for the present.."

Of course Bob Crow from the RMT isn't taking this lightly and said "It is the mayor who has insisted on a link between last year's pay rise and late-night running, not RMT. It is now three weeks since the mayor told us he would get Tim O'Toole around the table with us to thrash out a solution, and that has still not happened."

"All we want to do is sit down and negotiate the pay rise that our members have been waiting more than ten months for. RMT warned the mayor two months ago that plans for late-night running were in disarray thanks to LUL's insistence on linking them with the pay round, and it is preposterous to try to place the blame elsewhere."

Well I wouldn't say no to three extra days holiday for working half an hour later for two nights. Any thoughts? If there's any RMT or ASLEF members around it would be particularly interesting to hear your views, especially as TSSA and BTOG are both in favour of the deal.

Radio Deal helps Tube Emergency Response

A £115 million deal was announced yesterday with the Airwave Radio Network so that there will be be full radio coverage for emergency services at all 125 below ground Underground stations. It will piggyback with the existing Connect digital radio system on the Underground. This is in response to criticism that poor communication hampered rescue efforts after the July 2005 bombings on the Tube.

Investigators from the London Assembly in June last year said there was an over-reliance on the mobile phone network; that the Tube's radio system was "antiquated" and it was "unacceptable" that rescue teams could not communicate underground.


Evening Standard June 2006
"British Transport Police, which has responsibility for policing on the Tube network, currently have radios that work underground, but other emergency services, including the Metropolitan Police, do not have compatible systems and so need to borrow BTP equipment or be accompanied by a BTP officer when underground.

The Connect digital radio network is now live on the Circle, District, Hammersmith & City, Metropolitan and East London lines, and will be rolled-out across the remainder of the Tube network throughout 2007."

Ken Livingstone said "The addition of the Airwave radio network to the new Connect digital radio system, currently being rolled out across the Tube network, is good news for London. It will bring added flexibility to the way that emergency services operate underground boosting the Metropolitan and City of London Police response to any incident on the Tube and providing extra reassurance to Londoners."

See Transport Briefing for the full report.

Not on the London Underground

Roundels not on the Tube

Nightclubs seem to be a popular venue for ripping off - sorry - borrowing the Tube Roundel for their logo. We have Piccadilly Circus in Toronto. Daman Albarn's club in Reyakjavik. A back street club in Napier, New Zealand.

Now we can add Brisbane, Australia to the list:


Ben F said "I found myself in Brisbane, Australia recently, and walking past Edward Street in the heart of the city, I passed a nightclub sporting another ripoff of the LU roundel. I couldn't resist dobbing them in...".

Ben appeared not to venture inside, so I checked out the club's website and the underground motif continued underground


Keep them coming in and I'll blog and add to the Flickr set.

Sexiest Underground Voice

Zis train is for Olympia only

Yesterday I received the following email from Matt Jarvis

"Hi there, while travelling on the Olympia shuttle the other day I heard possibly the sexiest, most alluring voice ever on the Tube. A French female accent softly purred the destination before reminding us to "Mind ze doors". I noticed she was also very petite and to be frank; cute, as we passed her cab on the way to the exhibition.

The following day, she was back on the same run, so we were treated to her announcements again. Sadly, the PA was very poor on this train and I could not get a good enough recording on my phone. If she ever reads this, I would like to thank her for brightening up my day. Top Girl!

Just a thought, how about a competition to record the sexiest (Male or Female) announcement on the tube? It appears LUL have cracked down on the humorous varieties, so maybe this would be a good substitute?"

It's a thought! If anyone travels on that District Line to Olympia regularly perhaps you could record the French lady for us. Maybe she could be encouraged to make some of the announcements in French too just to add a bit of variety.

It's pretty hard to make recordings of unusual announcements, as they do tend to be one off, so you need to be fast or have someone in full flow. I still thank Nik Fox for the following recording of Richie Vennard with his whole raft of funny announcements on the Jubilee Line.

Let us know any lines where there are some good voices and perhaps we can do our own Tube Idol.

First Sale Doctrine as A Defense to Copyright Infringement (Ch 12)

When you purchase a book, you can read it, then resell it to someone else. There's quite a traffic in used books. Other copies of works subject to copyright may be resold, such as a CD containing a sound recording.

In Brilliance Audio, Inc. v. Haights Cross Communications, Inc. ---F.3d ---, 2007 WL 188103 (6th Cir. 2007) a case discussed on the Patry Copyright Blog, the Sixth Circuit analyzed the first sale doctrine in both the trademark and the copyright context. Brilliance produced audiobooks. Haights Cross purchased a copy of Brilliance's sound recording. It then repackaged the copy, and offered the copy for rental.

Generally speaking, one may rent a copyrighted work that one has purchased. The two exceptions, elaborated at 17 U.S.C.A. Section 119 involve sound recordings and software. In other words, if you buy a musical recording or a copy of Microsoft Office, you can't rent those copies out.

The Sixth Circuit found that on the trademark claims, the plaintiff's actions fell within two exceptions to the trademark first sale doctrine: (1) the plaintiff alleged a repackaging without adequate notice to the consumer and (2) the repackaged materials using the plaintiff's trademark were materially different from those produced and labelled by the plaintiff.

The Sixth Circuit also found that Section 119's rental exception to the first sale doctrine did not apply to sound recordings based on literary works, but only sound recordings based on musical works. The lone dissenting judge pointed the majority to the plain language of Section 119 which appears to ban rentals of all sound recordings.

The Sixth Circuit noted that this was a case of first impression. It will be interesting to see whether a rental market will suddenly spring up around the works of Bill Cosby, George Carlin, Richard Pryor, Robin Williams and other works of comic genius that do not incorporate music.

Procedural Note: The District Court dismissed plaintiff's claims on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure "because the defense of first sale appeared on the face of the complaint." The Sixth Circuit construed the complaint broadly and in the light most favorable to the plaintiff and reversed. The Sixth Circuit did not criticize the maneuver of moving to dismiss under Rule 12(b)(6) based on a defense appearing on the face of the complaint.

Practice Tip: Where your client has legally purchased copies of works that were manufactured with the authority of the copyright holder, you may assert the first sale doctrine. If factual allegations appearing on the face of the complaint support assertion of the first sale doctrine, consider a motion to dismiss. NB. Be careful about resales in the U.S. of products manufactured abroad. The first sale doctrine may not in certain circumstances extinguish all distribution rights of the copyright holder in these products.

London Underground Fashion Victims

Fashion Victims on the Tube

It's Friday so it's time for the look at people on the Tube who've "taken a style and made it their own" to quote Louis Walsh out of X Factor. The TFV's are back.

Not Paris Hilton

I really hope that the Hilton bag was holding her "work shoes". Because fishnets and very sporty looking trainers don't do a lot for me.


I took this picture on the day we had snow in London and I wouldn't have thought that fishnets were ideal leg covering when it's freezing outside.

Nearer to Paris Hilton

Whereas this lady, snapped on the same day was a bit more equipped for the snow. In fact she could have been following a Paris Hilton in winter look


Furry Ugg style boots, check. Micro mini skirt, check. Glitterati belt, check. Baby Pink cropped parka, check. I think Paris would have been proud.

What's this sweety?

One of those occasions where you want to put on your high pitched Karen Walker (out of Will and Grace) voice, and waggle your finger in amazement.


It's not quite tartan. It's not quite MC Hammer pants (like these) They're not quite Twiggy Trousers (like these). They're erm... unusual to say the least.

That's it for now. The previous set of victims can be found here and the complete picture gallery can be seen on the following Flickr set.

Tunnel of Love

A Romantic night of Shafting


Ah February only two weeks to the 14th. If you're looking for an unusual Valentine's night a two stop journey on the Tube at Wapping might not be what you had in mind.

However on Valentine's Day, The Brunel Museum is organising guided journeys of the Thames Tunnel, by Tube, for lovers. By kind permission of a pandering London Underground, couples may see the smooth Doric columns, the deep recesses, the pilasters and porticos of the tunnelling Frenchman, Marc Brunel, Isambard's Dad. Here, before the trains came, were sixty shops with garters, silk handkerchiefs and lovers' tokens in the World's First Underwater Shopping Arcade. Here also at the Thames Tunnel Fancy Fair were novelty acts, sword swallowers and female acrobats, and dark places where lovers might talk until morning.

According to Robert Hulse curator of the Musuem and tour leader of this innuendo ridden trip "This is the ride of a lifetime for the Tunneller in your Life. The entertainers have long since gone, but tonight lovers alight from the train to stand, fingers entwined, gazes locked, and open mouthed at the foot of Frenchman Brunel's Wapping Shaft."

The Love Train leaves Rotherhithe at 7pm, 8pm, 9pm. This is the last
Underground Valentine Tour until 2011 because the East London Line closes in December 2007 for engineering works for the extension. Tickets cost £7 each or £10 a pair. For more details and to book online visit the Brunel Engine House Museum.