With the goal of capturing “the most detailed experience of a single moment ever in history,” CNN and Microsoft invite inaugural attendees to send photographs documenting the moment that Barack Obama took the oath.

Participants are instructed to:

“1. Take one photo of the moment when Obama takes the oath. If you have a digital camera with a zoom lens, take three photos (wide-angle, mid-zoom, full-zoom).

2. E-mail each photo as soon as possible to themoment@cnn.com (one photo per message, 10MB size limit). Please only send in photos you took yourself.

3. Go to cnn.com/themoment to see all of the photos in our photosynth.”

And what is a “photosynth” exactly? Photosynth is technology developed by Microsoft and the University of Washington that creates a collage, a derivative work. Specifically, photosynth takes multiple shots of the same scene and reconstructs the 2D photos into 3D space. According to the web site, “depending on the number of photos, their resolution and the computing iron thrown at the project we should have a fully explorable virtual environment. It is a technology in its infancy. This is the first time a mass audience has been asked to participate. The technology takes all the submitted images from thousands of sources and angles to create a 360 degree visual image that can be viewed from different angles.”

And what about the copyright in those photographs by the amateur photographers? It is governed by pretty complicated and professional sounding terms of use.

After granting CNN and its affiliates a perpetual, irrevocable, royalty-free, worldwide license to which the submitter retains only personal use rights (which some would call an illusory license, and indeed much more akin to an assignment than a license at all), that photographer “warrants” that he or she, the amateur submitter, has “the written consent of each and every identifiable natural person in any submission to use such persons name or likeness in the manner contemplated by iReport.com, and each such person has released you from any liability that may arise in relation to such use.” Which is a bit of a trick as there is no chance of the amateur having obtained such “written consent” on the Mall on January 20th; and that amateur just also agreed earlier in the terms of use that CNN does not have to inform what “use” will be made of the submission.

And yet, people seem to have blithely blown past all those words and have made their submissions nevertheless.

It’ll be interesting to see the copyright application for registration at the United States Copyright Office that CNN will be making. A daunting task, it will be to draft that application.

A U.S. District Court in California recently granted summary judgment in favor of Boy Scouts of America (“BSA”) in a trademark infringement suit concerning the mark YOUTHSCOUTS. In Wrenn v. Boy Scouts of America, 2008 U.S. Dist. LEXIS 91913 (N.D. Cal. Oct. 28, 2008), the Court found BSA’s Congressional Charter provides special protection to its exclusive use of “emblems, badges, descriptive or designating marks, and words or phrases.” In addition, the protection afforded by congress provides BSA “need not demonstrate” that the mark YOUTHSCOUTS is likely to cause confusion with BSA’s CUB SCOUTS, EAGLE SCOUT, BOY SCOUTS OF AMERICA, and SEA SCOUTS trademarks. While the Court, “for the sake of completeness,” undertook a traditional trademark infringement analysis under Ninth Circuit precedent, this case was ultimately decided in BSA’s favor through application of the “special protection[s]” afforded by Congress whereby specific trademarks are removed from the general trademark process.

Mr. Wrenn, the plaintiff, is the founder of the National Counsel of Youthscouts, a non-profit founded in 2002 when plaintiff’s daughter was denied the right to become a member of her twin brother’s Cub Scout troop. Mr. Wrenn filed a trademark application for YOUTHSCOUTS with the USPTO. Thereafter, BSA filed a notice of opposition to the YOUTHSCOUTS application with the Trademark Trial and Appeal Board (“TTAB”) (Opp. No. 91157313). In response to the TTAB action, Mr. Wrenn sought to cancel or amend numerous BSA marks on the grounds that the terms “Scouts” and “Scouting” are generic. The TTAB issued a ruling that BSA had valid and incontestable rights to marks CUB SCOUTS, EAGLE SCOUT, and BOY SCOUTS OF AMERICA. Plaintiff also filed a declaratory judgment action in the District Court.

The District Court reviewed the history of BSA and its Congressional Charter. In 1916, Congress passed a charter providing special protections for BSA. The original Congressional Charter provided: “The corporation shall have the sole and exclusive right to use, in carrying out its purposes, all emblems and badges, descriptive or designation marks, and words or phrases now or heretofore used by the Boy Scout of America in carrying out its program.” In 1998, the charter was changed slightly and now provides: “The corporation has the exclusive right to use emblems, badges, descriptive or designating marks, and words or phrases the corporation adopts.”

Ultimately, the District Court granted Defendant BSA’s Motions for Summary Judgment and Judgment on the Pleadings. In doing so, the Court found that “BSA need not demonstrate the likelihood of confusion because it has been granted special protection by Congressional charter,” citing The Last Best Beef, LLC v. Dudas, 506 F. 3d 333, 339 (4th Cir. 2007) and S.F. Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 531 (1987).

PRACTICE POINTER: A list of Patriotic and National Organizations recognized by Congress can be found here. If your client is on this list, its Congressional Charter may serve it well in a trademark infringement action.

This week, Apple announced that Digital Rights Management (DRM) would not attach to any single song from the iTunes store. This is huge confirmation of what most music fans have noticed: DRM doesn’t work and may never work. The details of this change include a price change. A tiered spectrum of prices will be the tariff card with the most ‘popular’ (read: hot and new) costing $1.29; the usual .99 cents for the chestnuts and perennial favorites; and then .69 cents for the sentimental and slow demand ones.

That music downloaded necessarily involves a ‘codec’ (which means that only a fraction of the full fidelity is made available) seems to continue to elude the consumer. But as anyone who has tried to play iTunes music on a full fidelity, fancy speaker knows, the quality of music is definitely strained…. and thin sounding.

For those of us who have been watching the DRM life cycle over the last decade, this is more confirmation that technological control efforts have far less to do with piracy than with an effort to control the design of consumer electronics, digital broadcasting and the evolving distribution models. Content owners are about out of tricks for how to slice and dice the accessing of content (regional codes, restrictions on porting lawfully made copies and pricing).

Washington D.C. is full of original works of art in the form of sculptures. One description of D.C. made by a young friend is that D.C. is a sculpture garden disguised as a town. A score of years ago, the Supreme Court issued a copyright opinion on another sculpture case, The Community for Creative NonViolence (CCNV). This opinion, Gaylord v. U.S., which issued on December 16, 2008, is consistent with CCNV.

The title of the work at issue, “The Column”, refers to a public sculpture depicting 19 Korean War soldiers in a ‘column’ formation. This sculpture forms the core of the larger Korean War Veterans Memorial (KWVM) in Washington, D.C. Frank C. Gaylord, the acknowledged artist who authored “The Column”, objected when the United States Postal Service commissioned a freelance photographer for $1,500.00 and then used that image on a commemorative stamp. The USPS sold 86.8 million 37-cent stamps bearing the image before retiring the stamp in 1998. The photographer pocketed his $1,500. Gaylord got nothing, not even a free stamp.

Gaylord sued; alleged copyright infringement; and demanded as damage 10% of the revenue of the USPS stamp sales.

The tangled facts surrounding the creation of the sculpture are pivotal in understanding this case. It is a fact pattern that reads like a nested Russian doll. An architectural firm won the contract from the American Battle Monuments Commission (ABMC) to create and install the KWVM; and, that architectural firm subcontracted the sculpture of the soldiers (19 in all) to Frank Gaylord, a self employed and well known artist. In the documentation regarding the creation of the sculpture, Gaylord demanded; was refused; and then succeeded in unimpeded ownership to the copyright in his works. Gaylord obtained numerous copyright registrations covering the sculptures of the poncho wearing foot soldiers both individually as a grouped column.

After the KWVM was installed, an amateur photographer visited the KWVM during a snowstorm and took photographs. The snow frosted images of trudging soldiers in column was licensed to the United States Postal Service for $1,500. The photographer notified the Postal Service that the permission of the artist of the sculpture would also be needed for reproduction of the image. The Postal Service contacted the ABMC who represented that it had the rights to the sculptures. No one contacted Mr. Gaylord; Mr. Gaylord did not consent.

Upon learning of the use of his work, Gaylord tried negotiating a ten percent license on the revenue of the stamp sales, and when that was refused, he sued the United States.

The United States defended stating that the Gaylord sculpture was a joint work. In reviewing the facts and logic, which were reminiscent of those of the Community for Creative Nonviolence (1988), the Court of Federal Claims found no joint authorship and that Gaylord is the sole owner of the sculptures. However, in reviewing the defense of fair use, the Court of Federal Claims found that United States Postal Service stamp was a fair use of Mr. Gaylord’s solely owned sculpture as the stamp is a transformative work, having a new and different character and expression from that of Mr. Gaylord’s sculpture. Gaylord for all his effort and for his tenacity in taking the matter to court; still gets nothing.