February 25, 2007

What Was Taken, Silly Rabbit, Not What Resulted....

WB Music Corp v. RTV Communications Group, Inc. 445 F.3d 538 (2d Cir. 2006)

In 7 separate CD products, RTV copied and distributed unauthorized copies of WB Music's copyrights in 13 musical works. The trial court held that the infringement was willful and granted statutory damages for 7 infringments.

On appeal, the Second Circuit reversed and awarded 13 infringements. The damage calculation was properly the works taken not the works produced.

Posted by Kate Spelman at 06:39 PM

Statute of Limitations Tolled By Fraud

Roberts v. Keith 79 USPQ 2d 1368 (SDNY 2006)

This is a case of disclosure; biding one's time; and that biding being seen as a fraud that tolled the three year statute of limitations.

Roberts wrote songs in 1976 and 1977 and showed them to Keith who stated that he had no interest in those works.

In 1980, Keith released the songs; and between 1997 - 2001, Keith's song was re-released repeatedly in compilations.

Roberts sued Keith in 2003 for copyright infringement; and, Keith defended that the statute of limitations barred all infringements prior to 1999.

Court held that the Statute of Limitations was tolled by the fraud of Keith. Motion of dismiss on statute of limitations denied; case going forward.

Posted by Kate Spelman at 06:28 PM

The Adult Student's Guide to Copyright Ownership

Gilpin v. Siebert 419 F. Supp 2d 1288 (D. Or. 2006)

Bernadine Gilpin was an employee of the Portland Community College as a counselor. With another college employee, Al Gilpin, she co-authored a book, "College Survival and Success".

In a copyright infringement action between the two authors, summary judgement was denied because there was insufficient evidence on whether the Work Made For Hire doctrine applied. The court noted that the record was insufficient to determine the following:
-whether the writing was incidental to job duties;
-whether work was created inside or outside the authorized work hours;
-whether the the writing was within her job description;
-whether the writing was written with the intent to benefit the college; and,
-whether the writing was inspired by or derivative to her work experience.

A veritable paint-by-numbers for a professor to own a copyright, it is.

Posted by Kate Spelman at 04:48 PM

Checking the Wrong Box Not of Consequence

Pritchett v. Pound No. 05-41445 December 18, 2006 (5th Cir)

Pound was an employee of Pritchett; and his employment agreement/ job description included that he would be“completing regular written
assignments and the development of new products and procedures;" and that “[s]hould the Employee produce any written materials in the course of
his work with the Employer, then such shall be done for and on behalf of the Employer and all work produced shall be the exclusive property of the Employer.”

While still employed in 1988 and 1989, Pound co-authored two books which Pritchett both filed for copyright applications at the United States Copyright Office, and published and sold successfully.

When completing the copyright application, Pritchett erroneously checked "NO" in response to the question, "Is this a Work Made For Hire?"; and went on to identify Pound as an "author" on that form. The copyright applications resulted in registrations; and an effort to correct that error at the Copyright Office was blundered in 1990.

In 1995, Pound died. Pritchett was generous in accomodating the widow including paying the entire one million dollar bonus that year even though Pound had only worked one quarter of that year.

In 2002, Pound's widow sued Pritchett as a joint author demanding an accounting and damages.

Pritchett defended that Pound was not an author, and that the Work Made For Hire doctrine trumped the errors in the copyright application.

The Fifth Circuit agrees with Pritchett stating that a more clear agreement of the parties was needed to change the status of Work Made For Hire. The error in the copyright application was not substantive or effective in changing ownership.

Posted by Kate Spelman at 04:14 PM

Copyright Is In The Cards

Faessler v. United States Playing Card Co 1:05-cv-00581; U.S. District Court for the Southern District of Ohio

Michael Faessler was a cadet at the United States Military Academy when he composed a playing card set modeled on the military ranking system (lowest rank correlates to lowest card and so on). Faeseller registered his set with the United States Copyright Office; offered to sell the cards through the military commissaries but was declined that opportunity.

Upon learning that his identical card sets were being manufactured, and distributed by the military commissary, Faessler sued.

Two of the defenses raised were that there is no copyright in the set; and that the location of copyright notice solely on the joker card and not on any of the other cards caused any copyright to be forfeit and the work in the public domain.

The trial court held that the copyright in the set is valid and enforceable; and that the notice on the joker card alone is sufficient.

Posted by Kate Spelman at 03:40 PM

More Labyrinthian Renewal Issues

Roger Miller Music, Inc. v. Sony/ATV Publishing 2007 WL 443048
In what is becoming a normative complicated and attenuated set of facts for a renewal case, this case involves whether the renewal of Roger Miller's 1958 - 1964 music was timely.

Mary Miller, the widow of Roger, sued Sony for copyright infringement asserting that the Roger Miller estate and not Sony owned the renewal rights. Key to the complicated set of facts is that Sony filed the renewal documents on behalf of Miller personally in the twenty eighth year, before Miller died later in that same twenty eighth year.

This tee-ed up the question simply as: can a copyright renewal term vest before the renewal term begins?

The issue is further complicated because these pre-1978 musical works are now governed by the 1998 Bono Copyright Extension Act which states:

Section 304(c)(2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which —

(i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the application is made; or

(ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright.

The trial court ruled that because Roger Miller was alive at the time that Sony filed the renewal, the renewal rights went to Sony.

The renewal rights of the pre-1978 works are proving to be valuable; and the courts are giving us more guidance on when and how the timing of the renewal dance works. More proof that copyrights are economically vibrant, still.

Posted by Kate Spelman at 02:41 PM

No Horsing Around With The Facts

Tenn. Walking Horse v. Nat'l. Walking Horse 2007 WL 325774 (M.D. Tenn. Jan. 31, 2007)

Out of Tennessee, we learn that facts about horses that are selected, arranged and organized in a registry are copyrightable.

Here are the facts: The Tennessee Walking Horses Breeders Association of America (TW) has been keeping a registry since 1935 which keeps the details of just under half a million horses' pedigree and related information such as identifying details, unusual markings and legacy data.

In part precipitated by the controversy over 'soring' the Tennessee Walking Horse, a separate association, The National Walking Horse Association, (NWHA) was formed in 1998 to promote the breeding of that specific horse breed without the training technique called 'soring' that makes the horse lift their feet in the archetypal manner of that breed. In July of 2004, the NWHA rolled out a registry that was to be analogous, but separate from the TW registry.

TW obtained a copyright registration for its registry; and, filed a copyright infringement action against the NWHA alledging that the NWHA registry infringes the TW registry compilation copyright. TW's summary judgment motion details that their registry comprises facts that are specifically selected, organized and arranged, including unique colors and combinations, markings, identifiers and abbreviations. (“blaze lower lip, sock left hind leg,
fetlock right hind leg").

Judge Todd Campbell, of the Tennessee federal trial court ruled, in January of 2007, that the copyright registration is valid and that NWHA's copying constituted copyright infringement. The court discarded the NWHA's defense that that the small facts of that were used were 'de minimis'.

Posted by Kate Spelman at 02:06 PM

January 08, 2007

DRM is not Fairplay ?

A couple of individuals whose last names are Tucker and Ruth have filed a couple of important law suits in the last month. Class action law suits which means that the plaintiff is asserting that the true number of plaintiffs that form the 'class' in the 'action' are too numerous to count. The operative word is "individuals" here because that is the constituency of people who are downloading music from Apple's iTunes and buying music from the conventional big music players (Sony, BMG, Universal, TimeWarner).

The two class action cases are based on a claim that Apple and the big music players are effectively a monopoly because they collectively are over 75% of the market providers of music; and, because they have deliberately and consciously disabled the individuals in the market from having the right/ability to use the music that they are acquiring over different platforms. In short, it is the choke hold that Apple and the big music players have over the music buyers options of how or where to play the music that is the problem.

The law suits are a further indication that the consumer market is growing intolerant with being dictated to and restricted in how the music plays. The 'Consumer Technology Bill of Rights' has been percolating through the grassroots communities for some time and involves these rights:

1. Users have the right to "time-shift" content that they have legally acquired.
This gives you the right to record video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.
2. Users have the right to "space-shift" content that they have legally acquired.
This gives you the right to use your content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you're jogging.
3. Users have the right to make backup copies of their content.
This gives you the right to make archival copies to be used in the event that your original copies are destroyed.
4. Users have the right to use legally acquired content on the platform of their choice.
This gives you the right to listen to music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer.
5. Users have the right to translate legally acquired content into comparable formats.
This gives you the right to modify content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.
6. Users have the right to use technology in order to achieve the rights previously mentioned.
This last right guarantees your ability to exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.

These cases pursue number two and four, above, the right to space shift and the right to use legally acquired content on the platform of their choice.

The Recording Industry Association of America (RIAA) seems to have gotten a grasp on the solution ahead of the big music company members who comprise the RIAA. Cary Sherman, president of the RIAA, recently joined in possibly supporting these two 'rights' when he said, "We are focused on interoperability".

What interoperability will look like; and whether the leading device manufacturers, Apple and Microsoft, will begin to offer some version of 'pret a porter' remains to be seen. But the recipients of music are definately not passive recipients. Consumers want the music and they want to be able to take it with them beyond the machines from which they first legitimately access it. Watch this space. As it is known, we'll be discussing it here.

Posted by Kate Spelman at 03:02 PM

December 31, 2006

Koons' Collage Constitutes Continuing Quest

Jeff Koons has contributed mightily to measuring the metes and bounds of what constitutes 'fair use' in making unauthorized use of someone else's copyrights. He did it with images of puppies; he did it with celebrity photographs; and now, he's done it again with ladies legs.

To begin at the beginning, Andrea Blanch, a professional photographer, took a series of photographs of women's legs that were used in the August 2000 issue of "ALLURE" magazine.

Jeff Koons, in fulfilling on a commission from the Guggenheim Foundation and Deutsche Bank, elected to scan a portion of Blanch's legs; and, then Koons took the digital scan of Blanch's work and digitally superimposed those Blanch images against a background of pastoral landscapes. The resulting image is said to comprise to a 'collage' which was then reduced to templates for painting upon billboard sized canvases and entitled "EasyFun-Ethereal". The Koons' collage (with Blanch's work embedded) was exhibited in 2000 and 2001 in Berlin and New York City.

Blanch sued; and, Koons succeeded at the trial court level on his defense of fair use. Blanch appealed; and the Second Circuit had a long look at the picture. After the court found that the first and second factors of the four-part fair use analysis demonstrated that the collage was both transformative and constituted social commentary. With 'transformative' recognized, it was not surprising that fair use was found, but it didn't help when Blanch admitted that the use of her photographs did not harm her career, the market for her work or the value of the work in the market place. ( No. 05-6433-cv, 2nd Cir.; 2006)

Koons must be appreciated for his fondness for incurring legal fees. He is a Don Quixote of 'Fair Use' who has quite a track record for galvanizing fine copyright case law. Maybe there is a Guggenheim grant funding that quest on which Koons has led so many lawyers and students. Not surprisingly, Koons had his own team of lawyers; and the Guggenheim Foundation had their own team of lawyers; Deutsche Bank had their own team of lawyers.... and giving a grant to Koons begins to look like that old PRELL commercial for lawyers' full employment.

Posted by Kate Spelman at 07:18 PM

Copyright and First Amendment Collide over Minneapolis Skyline

Chris Gregerson, an individual professional photographer representing himself in Minneapolis federal court, fails in obtaining an injunction against a financial institution that appropriate his photograph of the Minneapolis skyline; but succeeded in eluding a defamation counterclaim.

Defendants use the allegedly infringing photograph in their real estate web ads, print ads, brochures and in third party business directory advertisements, changed only by the elimination of Gregerson's copyright notice.

Gregerson, after learning of the infringement and finding no satisfaction in his demand that defendants stop infringement, posted on his own website to make his accusation of copyright infringement more public and explicit. The defendants in Chris Gregerson v. Vilana Financial Inc. et al (No. 06-1164, D. Minn.) counterclaimed that Gregerson's website constituted defamation and trademark infringement. Specifically, the defendants claim that the organic search engine results are skewed as a result of the defendant's trademarks depicted in Gregerson's website.

Gregerson defended claiming a first amendment right to state his criticism of defendants.

This is another in a long line of cases where the First Amendment trumps intellectual property causes of action; and it especially predictable when the First Amendment claim includes a criticism.

Now with YouTube allowing 90,000 new videos to be posted daily, this action is remarkable not for the controversy but because Gregerson knew, could locate and serve the parties that are making allegedly unauthorized use of his photographs. Take a look at the YouTube site and especially the most popularly viewed. None of the photographs, music or other third party copyright is authorized on YouTube; and we haven't see a spate of law suits. What a boon that safe harbor clause of the DMCA is for us all, right?

Posted by Kate Spelman at 07:16 PM

Boat Decks & Copyrights: The Camel's Nose is growing

The U.S. Copyright Statute has two symmetrical parts to Section 102. The first subsection sets out what is protected (... original expression fixed in tangible medium...") inside the tent of copyright so to speak; and the second subsection sets out what is prohibited from that tent's protection (.... In no case shall copyright protection extend to idea, process, system, concept, method of operation...). Over time, we have come to understand that the metaphorical tent of copyright does not extend to function. For function protection, you have to go to the Patent Office's tent.

But with our government being the best that money can buy, and given that there is more power in PAC lobbying than ever before, a new bill (S.17850) has passed the House and the Senate and needs now only minor ratification in the Senate before it is law. That new bill will extend copyright protection to function, specifically, vessel deck designs. This will be a further extension of the camel's function nose in the copyright tent that the earlier 2005 legislation brought in protecting vessel hull designs.

This is legislation has been specially lobbied through by the small craft design and manufacturing community; and, is the harbinger of the garment design ('fashion') bill that is in line to be addressed next. The proposed garment design bill will grant a three year monopoly to garment designers on patterns and features of clothing. Who knows, perhaps the optical design and manufacturing community will succeed in proposing new legislation for optical gear which has eluded protection to their satisfaction... and then we'll approach the whole head of the camel coming in under the tent of copyright.

Posted by Kate Spelman at 07:15 PM

November 12, 2006

Parody Going to the Dogs

Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. Nov. 3, 2006)

Pamela Reeder is the founder of Haute Diggity Dog which is dedicated to making fun of our globalized disease of affluenza while making some of her mortgage payment. Her company is self described as a "parody, plush, pet toy company" and the images of her products are depicted below, including "Sniffany & Co," "Chewnell No. 5" and "Chewy Vuiton."

When Louis Vuitton filed a trademark and dilution action in Virginia against the parodist, the court lost no time in ruling in favor of Haute Diggity Dog, saying:

"This dog of a case gave the court a great amount of facts to chew upon and applicable law to sniff out. Nonetheless, having thoroughly gnawed through the record, this Court finds that no material dispute of the fact remain."

and:

"The name "Chewy Vuiton" is, like "Timmy Holedigger," an obvious parody of a famous brand name. The fact that the real Vuitton name, marks, and dress are strong and recognizable makes it unlikely that a parody-particularly one involving a pet chew toy and bed--will be confused with the real product."

Vuitton also claimed copyright infringement. Why not just trademark infringement? Because, in 2002, Vuitton collaborated with Japanese pop artist Takashi Murakami to re-invent Vuitton's signature gold and brown monogram design. What resulted was a multicolor monogram design and a line of handbags and accessories that inspired a cult-like following. It seems that Murakami filed a copyright application for his design in 2002. On-line Copyright Office records list Vuitton as claimant and the work as "work made for hire."

The opinion raised the question of ownership of the copyright but concluded that the issue was irrelevant because defendant's use of the copyrighted work was fair use, specifically a parody.

It is interesting to note that the court analyzed whether "Chewy Vuitton" and the "CL" monogram constituted copyright fair use, even though LOUIS VUITTON and the VL monogram are really trademarks, not copyrights. The issue should have been instead whether defendant's overall design and arrangement of colors constituted fair use of the Murakami copyrighted design.

Posted by Kate Spelman at 11:21 AM

November 05, 2006

A Grokster defendant, Streamcast, liable for contributory copyright infringement

The case of MGM v. Grokster continues while everyone has moved on. Streamcast, one of the defendants, in the action was found liable under copyright contributory infringement for the Morpheus software.

Judge Wilson in Los Angeles held "evidence of Streamcast's unlawful intent is overwhelming" in the way that the Morpheus encouraged users to violate copyright law.

Two other defendants, Grokster and Kazaa, have already settled.

Posted by Kate Spelman at 01:37 PM

Belgian Court Stops Google From Posting Snippets

Recently, the Belgian Court of First Instance ordered Google to both cease excerpting snippets of text from French and German-speaking papers; and that Google post the injunction order on the Google website.

Google contintues to scan thousands of news outlets and books and has done so since 2002.

The Belgian court was unmoved by Google's defense that the snippet copying was intended to drive traffic to the originating news site. Google found the order to post on the Google website the Belgian website "disporportionate and unnecessary".

Posted by Kate Spelman at 01:21 PM

October 27, 2006

UK Recommendations on DRM

Digital Rights Management (DRM) is the focus of the the United Kingdom's "All Party Parliamentary Internet Group" (APIG); and, these are the questions addressed:

1. Does DRM distort traditional trade-offs in copyright law?
2. Do new types of 'content sharing licenses' need legislation to be effective?
3. How should consumers be protected when DRM systems are discontinued?
4. What legal protections should DRM systems have from those who wish to circumvent them?
5. What role does the UK Parliament have in influencing the global agenda regarding DRM?

After many meetings and some testimony from interested stakeholders and consumers, the APIG acknowledged that the issues and answers to the questions had eluded easy answer in the complicated technical and 'hugely fascinating' area. The following, while not answers, are the APIG recommendations:

A. There should be wider ranging exceptions to the anticircumvention prohibition than presently are on offer;

B. Labeling should be mandatory to mitigate the current consumer confusion around what is permitted and prohibited in their using the digital content that they purchase.

C. Vigilence and care will be needed to preserve the 'single market' aspirations when confronted with the differential pricing of DRM.

D. The strong position that the government NOT make DRM mandatory.

Posted by Kate Spelman at 11:37 AM

August 12, 2006

Idea Theft Evolving as a Cause of Action?

Reality television show themes and movie plots are among the theatre forming the new platform for the evolving area of state jurisdiction over 'idea submission' theft in New York and California courts. Arising from the case in which Jeff Grosso sued Miramax for Miramax's movie, "Rounders", the Ninth Circuit held that while Grosso failed to prove copyright infringement and therefore had no standing in federal court, the issue of idea theft was not pre-empted for resolution in state court.

Since the Ninth Circuit ruled in Grosso v. Miramax, there have been many state cases filed by the emboldened plaintiff's bar in both New York and California.

In California, four Californians sued Fox Broadcasting in July alledging that the reality television show, "So You Think You Can Dance" was stolen from an idea that the four conveyed in a meeting at Fox in 2003. At that meeting, the four individuals told a Fox executive of the idea and agreed to write, produce and direct it. No outline of the idea was written down; no script was written; no contract was signed; no confirming letter was sent; and no copyright application was filed.

In New York, two cases were filed this summer. The first is a suit against Warner Brothers filed by and author, Matthew Benay, for stealing the idea for the movie, "Samurai". The second is a suit against NBC by author, Maurice Fraser, who claims to have pitched a reality television show theme and idea which was not acknowledged or paid for, but which is about to be released in the fall show, "World Vision: An American Anthem".

These Californian and New York plaintiffs are optimistic that their claims of idea theft will fare better than Grosso's. This month, the California Court threw out Grosso's state case that "Rounders" was stolen from Grosso's script, "Shell Game".

Adding to the complexity, the standards for which ideas and under which contextual circumstances idea theft may be actionable vary widely between New York and California law. Which means that reality television is likely to spawn more litigation as 'reality' and television seem to be increasingly entwined.

Posted by Kate Spelman at 04:02 PM

" Licensed Only by the First Amendment"

Although Smack Apparel has been selling colleagiate t-shirt parodies since 1989, the absence of authorizing licenses was not a business oversight. Smack Apparel proudly announces on its website, "Licensed ONLY by the First Amendment" when it uses colors, fonts and near verbatim phrasing of popular college imprimaturs at www.smackapparel.com.

For Duke University - Puke

For Louisiana State - Bourbon Street or Bust

Colleagiate Licensing together with seven schools ( Louisiana University, University of Oklahoma, University of Southern California among them) sued Smack Apparel alledging trademark infringement by school color appropriation.

U.S. District Judge Mary Ann Lemmon of the Eastern District of Louisiana granted summary judgement in favor of Plaintiffs and finding trademark infringement for defendant's color misappropriation.

Counsel for Plaintiff, Collegiate Licensing, commented that such infringement as that of Smack Apparel, amounted to an estimated detour of over three (3) billion dollars in retail collegiate merchandise which denies the schools of scholarship and endowment monies.

Board of Supervisos of the Louisiana State University et al v. Smack Apparel 04-1593 (2006) E.D. Louisiana.

Posted by Kate Spelman at 02:51 PM

July 18, 2006

"Violate a Copyright? A Boy Scout May Be Watching"

This article on page B3 of the New York Times in the July 18th edition is reminscent of the sort of citizen reporting that happened in the McCarthy era. It is Hong Kong this time where young people in otherwise benign organizations are being recruited to report internet sites dispensing unauthorized copies of songs and movies.

The youth reporting is the grass roots end of the chain of reporting that funnels information up to the government. The Customs officials will then verify the internet site and then relay the details on the trade groups such as the RIAA, MPAA and the International Federation of Photographers. The identity of the reporting youngster (average age 11) will be kept secret, or so the Hong Kong government promises.

The Scout Association of Hong Kong reports that this campaign is a great vehicle to teach children good citizenship. The Hong Kong police department defends the campaign saying that it is no different than asking citizens to tell police when they see a crime committed.

Posted by Kate Spelman at 09:46 AM

June 25, 2006

'Fair Use' Caped Crusader!

A documentary is being filmed. A cell phone rings, playing the “Rocky” theme song. The filmmaker is told she must pay $10,000 to clear the rights to the song. Can this be true? “Eyes on the Prize,” the great civil rights documentary, was pulled from circulation because the filmmakers’ rights to music and footage had expired. What’s going on here? It’s the collision of documentary filmmaking and intellectual property law, and it’s the inspiration for this new comic book. Follow its heroine Akiko as she films her documentary, and navigates the twists and turns of intellectual property. Why do we have copyrights? What’s “fair use”?

The Duke Center For the Study of the Public Domain has this story in a new comic book available for sale or for free download. The Heroine's name, AKIDO, in this story means 'the way of harmony' but the story is anything but the story of harmony....

Posted by Kate Spelman at 03:54 PM

No Harm to Prevent When It Is Eight Months Later

Berlent v. Focus Features makes the lesson, again, that on the merry-go-round of preliminary injunctions, that old adage, "thems as snoozes loses" never gets stale.

Berlent, a New York composer, sued all the producing parties of the movie, Brokeback Mountain, claiming that the movie theme song was a copyright infringement of Berlent's own song, "Slow Dance".

The Southern District of New York never got to the merits, but looked at the timeliness of the filing of the law suit relative to the harm that the action was seeking to prevent. As Berlent filed the action eight months after the first public release of the movie trailer; five months after the soundtrack was released; four months after the movie was released; AND, one month after the Academy awarded "Best Original Score" for the music at issue, the court held that the only rights to be discussed were after a trial. Motion for Preliminary Injuntion denied.

Berlent, in the complaint, acknowledged that he was already in the intolerable position of watching someone else get an Oscar for music that Berlent had written and for which he got no credit. Berlent claims that he only heard the music when a television advertisement presaged the release of the DVD of 'Brokeback Mountain'.

Posted by Kate Spelman at 03:24 PM

May 17, 2006

Copyright Is 'Mixed Use" and Now For the 'Mixed Ownership'?

Just when we were getting comfortable with sorting out the multiple layers of ownership and contribution in the faux Open Source world, the South San Francisco Democrat, Gene Mullin has decided that California needs a state "Office of Intellectual Property". This new office would act as the broker and auditor of state funded research that leads to patents, copyrights, trade secrets and trademarks.

Bill 2721 specifically does not apply to any of the Stem Cell Research, but would apply to research in agriculture, geothermal resources, breast cancer and other areas. It does not address who would own what when the project is funded by federal or other state's monies as well.

As one whose grandfather was one of the horticultural genius's of his age, the idea that plant hybrids are patentable is still a new idea. The idea that a state experimental station researcher's efforts are now even more complicated in ownership is an even more startling idea. If you haven't read Michael Pollen's book "The Omnivores' Dilemma" you will enjoy reading how he thinks the intellectual property ownership of agriculture should be handled: agribusiness or artisan.

Posted by Kate Spelman at 01:01 PM

May 16, 2006

Asking Permission Not a Bar to 'Fair Use' Defense

Dorley Kindersley was getting ready to publish a cultural history of the Grateful Dead illustrated with over 2,000 images. Seven images of concert posters were thought to be the perfect chapter heading.

Dorling Kindersley approached the Bill Graham Archives to use the posters; and permission was refused.

Notwithstanding that 'not only 'no', but 'hell no'' answer, Dorley Kindersley made use of the seven same concert images for which it had asked permission, but made use in a different place in the book; a different size; and a different role.

The Second Circuit Court of Appeals in Bill Graham Archives v. Dorling Kindersley (05-2514) ruled on Monday that the Dorling Kindersley's use of the posters qualified under the Fair Use Defense. The court held:

"This conclusion is strengthened by the manner in which DK displayed the images." First because the use was substantially smaller than that for which DK had asked; and because the posters graphic was used in the chronological time line which conveyed the historical significance of the graphic art of the posters.

"Overall, DK's layout ensure that the images at issue were employed only to enrich the presentation of a cultural history of the Grateful Dean, not to exploit copyrighted artwork for commercial gain".

Posted by Kate Spelman at 08:39 PM

May 14, 2006

We know about copyrights.... but copyduties?

If you haven't got a copy of today's New York Times magazine in which the cover article is

"WHAT WILL HAPPEN TO BOOKS? Readers take heart! (Publisher, be very, very afraid.) Internet engines will set them free."

You will want to read it. The author isn't as informed on copyright law or its history as he is on the mechanics of the Google Library Project, but he makes some good points. Among his more contentious concepts is one in which he would impose a quid pro quo for copyright claimants and authors. He calls it the 'counterbalance' that is needed to make copyright more like patents (just what we need, huh?). He echoes the best biggest reason, if there is one, for legitimizing the Google Library Project as "Having searchable works is good for culture." He proposes that the copying be a new 'covenant' and be a precondition to a copyright arising. Kelly would call it a "copyduty" that a copyright creator has an obligation to allow the work to be copied for searching purposes. "No search, no copyright".

No small ambition does Mr Kelly articulate. Not to mention how such a 'covenant' comports with international treaties and laws.....

Posted by Kate Spelman at 08:08 PM

May 03, 2006

Animal Copyrights? Got Certification Mark?

Gregory Colbert, the Canadian film author of "Ashes and Snow", was watching the Superbowl this year when the frequency of animals in advertising (Clydesdales, monkeys....). Animals seemed the necessary equation to an ad being popular and also represented the closest interaction most people had with animals.

Colbert has called friends far and wide with the result that some are proposing "Animal Copyrights" and some in advertising are agreeing to pay 1% of their media buy to wildlife conservation.

Larry Page, co-founder of Google, is reportedly calling the idea "subversively brilliant". Colbert promises that advertisers who participate will get an animal rights seal of approval. Here's hoping that he's already got the certification mark on file at the PTO and the copyright registration filed for the graphics and manual.

Posted by Kate Spelman at 04:42 PM

April 23, 2006

Statute of Limitations Runs on "THRILLER" Cause of Action

George Gleeson, taking a page from the case of Three Boys Music v Bolton (9th Cir, 2000), claimed that the statute of limitations (3 years) must be tolled for his case as he was unaware of his right to pursue his copyright claim. Gleeson claims to have been the author of the popular dance step 'moonwalk' and that Michael Jackson and Quincy Jones stole those specific choreography steps from him..

George Gleeson filed hand written, 'pro per' pleading in August of 2005; and documented that he contacted federal officials in 1984 and 1985 about the copyright infringement allegations.

The federal court in Fargo, North Dakota issued summary judgement on behalf of defendants holding the $75 million dollar claim to be time barred:

"Gleeson should have commenced a civil action within three years of when he first contacted the federal officials and became aware of his right to pursue the claim. "

George Gleeson v. Michael Jackson and Quincy Jones. No. 1:05-cv-088, D. N.D.; 2006 U.S. Dist Lexis 8125.

Posted by Kate Spelman at 06:04 AM

NonProfit Copyright Co-Author

The Robert Lappin Charitable Foundation retained Gil Baker to produce a documentary dedicated to celebrating the contributions and accomplishments of notable Jews entitled, "Great Jewish Achievers" (JGA). The deal provided that Lappin was to provide specific suggestions, be responsible for all "final decisions" as the movie was Lappins' "brain child". Lappin paid $177,500; however Baker sued claiming that the payment was instead to have been funding an unrelated full length film "Bungalow Six".

Baker sued claiming total ownership of the GJA film and damages of $500,000 both for copyright infringement and failure to fund the "Bungalow Six". Baker claimed to own the movie as sole author.

The federal trial judge dismissed the action in Gil Baker v. The Robert L. Chappin Charitable Foundation No. 04-Civ-426, S.D. N.; 2006 U.S. Dist. LEXIS 7113 holding that plaintiff and defendant are co-authors and as such, Baker had no standing to sue defendant.

Specifically, the court held that defendant non profit was a copyright author 'even assuming that Chappin was not present in the editing room when the film was edited, as Baker alleges, the law does not require that joint authors work together in the same place or contribute to every aspect of the project." That the nonprofit contributed material to the movie that were independent copyrightable contributions which were more than 'de minimis' and that were intended to form a 'unitary whole' with Baker's contribution made the work a jointly authored one.

Posted by Kate Spelman at 05:16 AM

April 10, 2006

UK Court Finds Borrowed Text is "...not crucial or important text in the creation..." Finds No Copyright Infringement

In 1982, the book "Holy Blood, Holy Grail" (HBHG) advanced a centuries old story that Mary and Jesus were married and that their blood line both survives into the present and has a guardian cult. The book, HBHG, was headed into the usual destination: obscurity, when Dan Brown's "The Da Vinci Code" was published in 2003. In the year before Brown's book was published, 2002, the total number of copies of HBHB sold in the UK reached 357.

After The Da Vinci Code published, sales of HBHG went up over one thousand times (1,000+). Even with that spike in sales, HBHG did not generate the 77 million dollars in royalties that The Da Vinci Code generated for Brown (that's just the book sales, not including the movie deal)

Both books are published by the same house, Harper Collins.

The HBHG authors sued Brown for copyright infringement. Brown not only included parts of the centuries old story in The Da Vinci Code, but also cited and gave credit to HBHG.

Last week, the HBHG plaintiffs got a double loss. First the court ruled against them stating that the architecture that Brown took was "not crucial or important text in the creation of "The Da Vinci Code" framework. Then, following the UK tradition of loser pays both parties legal fees, the HBHG plaintiffs will foot 85% of the legal bills of both Brown and Harper which are reported to exceed 2.5 million dollars.

The downside of this case for some of us is Dan Brown's statement that he can now get back to writing more books.

Posted by Kate Spelman at 07:38 PM

Flea World Ticks Off Arista Records -- Liable for Copyright Infringement

Flea World, Inc., one of the largest flea market hosts in the country, was found liable for both contributory and vicarious copyright infringement last month by a New Jersey district court. The case, a rehash of the old flea market cases of the 90s, was brought by Arista Records, Sony Music, and a number of other recording industry organizations. The plaintiffs sued Flea World for allowing vendors to sell pirated copies of music CDs and videos, even though it knew, or should have known, that these vendors were marketing illegal copies of plaintiffs' products.

Both plaintiffs and defendants used as evidence the rules created by the defendant for its vendors, pointing to the fact that it a) prohibited counterfeit sales, b) regularly policed and reviewed merchandise, and c) often removed vendors from the flea market for violating those rules, at least in some areas. The court found that the evidence put forth at trial showed that defendants exercised substantial control over each of the vendors in question and also provided the vendors with amenities such as free parking, advertising, tables, maintenance, and security. Given that the defendants maintained a well-controlled environment, should have known that the piracy was taking place (and did, at least selectively), and received a substantial financial benefit from these pirated materials, liability was found.

In addition to its copyright troubles, Flea World may also have some trademark challenges ahead, since a number of organizations claim trademark rights in the term FLEAWORLD. Save a little for your next, battle guys.

Posted by Tsan Abrahamson at 05:16 PM

March 19, 2006

How is Writing on Frosty Window NOT Like Cache?

The District Court of Nevada ruled in Blake Field v. Google that there is no copyright infringement when Google copies, using its "cache" program, third party content and allows internet users to view those cached, third party web pages. The court stated that it is the internet users who are downloading the stored content and that the search engine company is 'passive' in the copying and is protected under the DMCA. "Without the user's request, the copy would not be created and sent to the user; and, the alledged infringement would not have occur. The automated, nonvolitional conduct by "Google in response to a user's request does not constitute direct infringement under the Copyright Act."

So on to the frosty window, one of the old chestnuts of the law school copyright class is the ask the question of whether writing word on a frosty window causes sufficient fixation for a copyright to arise. The copyright statute explicitly provides that a copyright subsists in original expression fixed intangible medium. And the 'front on the window' chestnut frames the question of what is enough permenance. The answer has been that writing on a frosty window is transient, but with sufficient permenance to be fixed for copyright purposes.

This case juxtaposed with the old chestnut of 'enough' highlights how our culture is at an inflexion point. The the visual world of atomic object lessons (frost on the window) are dischordant with the invisible world of electronic object lessons. The judge in Nevada is focusing on the 'who' in the atomic world is doing the acting in summoning the case and is oblivious to the 'what' in the electronic world where the copying is happening. No. 2:04-CV-0413 (D. Nev.). Good thing Google doesn't have 'frost' caching.

Posted by Kate Spelman at 11:40 AM

March 12, 2006

"Sweat of the Brow" Doctrine Still Dead

One of the oddities of American copyright law was what was referred to as the "Industrious Collection" [ aka the "Sweat of the Brow"] doctrine which granted a copyright in works resulting from the laborious assembly of otherwise unprotectable data. Examples were telephone directories, sports statistics, maps and other 'facts'....assembled by folks in green eye shades, no doubt.

Perhaps because of our international citizenship, perhaps because of the ubiquity of the computer's power, perhaps because Sandra Day O'Connor had magic glasses when she read the Constitution Article One, Section Eight, Clause eight, perhaps because no one wears green eye shades at work anymore. Whatever the reason, the "Sweat of the Brow" doctrine died officially in the Supreme Court opinion, Feist v. Rural Telephone (1990).

In the recent case of Jeffrey A. Grusenmeyer & Associates Inc. v. Davison, Smith & Certo Architects Inc. et al., No. 1:04CV2381, N.D. Ohio; 2006 U.S. Dist. LEXIS 2757 Grusenmeyer, an architectural firm, submitted master plans with explicit understanding that the plans would be used in the development of a new campus. Claims that the plans were copyrighted were challenged because Plaintiff's plan amounted to an AutoCAD program depicting the existing facility without new expression. The court, in finding no copyright, said,

"Although Plaintiff may have dedicated considerable time to the existing conditions drawings, copyright law rewards originality, rather than effort".

'Industrious Collection' [aka 'Sweat of the Brow'] remains just detritus of last century.... along with those green eye shades.

Posted by Kate Spelman at 04:34 PM

March 09, 2006

'Orphan' Estranged From 'Copyright Parents' Forever?

Filmmakers, songwriters, and publishers often face frustration and "brick walls" when seeking to find owners of copyrighted works in order to get permission to use them. In many cases, despite best efforts, creators and their heirs may be unlocatable. This puts filmmakers and others in the precarious position of deciding whether to use the work and risk a copyright infringement lawsuit, or abandon the work, perhaps forever. Stories are legion of documentary film projects abandonned after years of effort all because copyright holders could not be located.

Deemed "orphan works" because it's unclear who the "parents" are, the challenge of locating owners of copyrighted material has become such a large problem that the U.S. Copyright Office has been asked by Congress to propose a solution. The new Copyright Office Report On Orphan Works is an articulate statement of the problem, the current law and some candidate solution paths. Click HERE for Copyright Orphan Works Report.

The solution, however, presents challenges of its own and, in fact, may be over-reaching in terms of denying rights and royalties to owners who deserve them. The solution, as recommended in the Orphan Work Report, is feared by many to be the 'exception that swallows the rule'. Just as Canadian law currently imposes a compulsory license to the person who can document 'good faith effort to locate', the recommended legislation will provide low to no monetary damages and relief from injunctions against the resulting derivative work when attribution is given and there is a documented but failed 'good faith effort to locate'.

While the 'fair use' defense is explicitly not affected by this possible change, it would moot the whole 'fair use' defense in many circumstances. This would be especially true in the graphic arts arena.

Posted by Kate Spelman at 01:33 PM

November 28, 2005

Chinese Copyright Center Becomes Reality

While the United States is the only country which gives incentives for copyright registration, the concept of having a centralized location for the issuance of registration and the exhibition of works is catching on in other nations. The copyright registration fee is seen as an easy victimless tax; and the database of the works created a good benchmark and chronicle of an era and the creators in that era.

The Chinese Copyright Center will be located in Shanghai and will be focused especially on the protection, design, service and trading of cartoon and animation works. The tertiary benefit would be to boost awareness of copyright in a country beleagured by counterfeit and piracy of copyright.

The Republic of China (Taiwan) maintains its own copyright office and a good summary is provided on the Wang and Wang web site.

Posted by Kate Spelman at 12:01 PM

August 02, 2005

Artist Barbed about Copyright Infringement Outcome

A federal court in Colorado denied Kathleen Todd's claim for copyright infringement and granted defendant's motion of summary judgment, on the ground that Todd's jewelry had no copyrightable features.

In 1996, Tood applied for and received a copyright registration for her jewelry crafted from barbed wire. Montana Silversmith's Inc. came out with their own line of barbed wire jewelry in 2000 and Todd sued for copyright infringement. The court found that while Todd was a skilled artists and her work had a certain "creative gestalt," and emotional appeal, these things lacked the precision necessary to define them from a legal perspective and was therefore forced to find that her designs did not add anything to the public domain features of the barbed wire.

Posted by Tsan Abrahamson at 02:42 PM

June 27, 2005

Supreme Court Shares Opinion in Grokster Case

Siding with record labels and movie studios, the Supreme Court has held that peer-to-peer file sharing companies, such as Grokster and StreamCast can be held liable for contributory copyright infringement if their customers engage in illegal file-swapping while using their products.

Writing for the majority, Justice Souter summed up the decision in this way: "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement."

The Court was careful not to overturn its decision in the 1984 Sony Betamax decision. In that case, which addressed whether Sony could be held liable for creating a recording device that allowed third parties to infringe copyrighted works, the Court held that a company could not be held liable under a theory of contributory or vicarious copyright infringement for selling recording devices so long as the device had substantially non-infringing uses. Justice Souter noted that, in the Sony case, and the cases that followed, the creators of the technology were not actively encouraging illegal behavior. The Court underscored that the holding in the Sony case did not give companies a free pass on liability; in fact, the standard was that a product had to have a substantially non-infringing use, in order to avoid liability.

In the current case, wrote Souter, the evidence showed that Grokster and StreamCast made no efforts to put in place anti-infringement measures and in fact, seemed to be "aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users."

The court was careful to craft a decision that did not implicate any new technologies that might have the potential to foster illegal activity. Indeed, the ruling clearly suggests that technology alone is in sufficient to impute liability to a manufacturer. In short, the standard must involve technology-plus in order for liability to be found.

Posted by Tsan Abrahamson at 09:58 AM | Comments (0)

May 05, 2005

Be Careful What You Download; A Boy Scout Might Be Watching.

The Los Angeles Times reports that the Motion Picture Association, in conjunction with the Japan Boy Scouts, has created the world's first merit badge awarded for "respect and protection of intellectual property."

Evidently, the Motion Picture Association of America has approached the Boy Scouts several times in an attempt to persuade the Boy Scouts of America to create a similar badge. Thus far, the Boy Scouts are not considering the badge. The appropriately named spokesman for the National Council of the Boy Scouts, Greg Shields, has suggested that such a badge would be a departure from the other badges, which generally relate to career skills or lifelong interest. Well, Greg, the way things are going, a viable career choice in the U.S. will be National Police. Then the badge could be part of the invasion of privacy skill set.

Posted by Tsan Abrahamson at 10:22 AM | Comments (0)

March 22, 2005

AFP Files (Le) Copyright Infringement Suit Against Google

Google News, one of the more recent additions to the Google family of specialty sites has been sued in the District of Columbia by Agence France Presse (AFP), the French equivalent of the Associated Press. In the suit, AFP claims that Google News is "reproducing and publicly displaying AFP's photographs, headlines, and story leads on Defendant's news aggregation Web site." In addtion, the suit claims that Google also is stripping from the lead stories AFP's copyright information.

Pivotal to this case will be the question of whether -- in the new digital age -- publishers of content have any duties beyond those noted in the Copyright Act to keep information on their web sites from being indexed by news web crawlers, like the ones at Google. According to Google, technology is available to block the web crawlers used by Google. AFP claims that a copyright statement is sufficient to ward off would-be infringers, and that it has not responsibility to purchase technology to keep out Google.

Other issues that will no doubt come up in the case include whether the headlines that Google is taking constitute the heart of AFP's creative authorship. On the one hand, headlines typically constitute only a few words compared to the total article. On the other, many copy editors work very carefully to craft headlines that will attract the reader and accordingly, can come up with some unique presentations. Then again, many news organizations use a technology called Real Simple Syndication, which automatically pushes headlines to users. Such widespread use of this type of technology suggests that the market for purchasing the article may not be depleted by the taking of the headlines.

One hopes that Google's litigation budget is not yet maxxed out. Google also recently launched a service called Google Books. According to Internetnews.com, Google Books indexes the content entire books such that a search query might trigger a quote from one of them. Shakespeare, perhaps or other books in the public domain may be fair game; still, wethinks we smell something smouldering.

Posted by Tsan Abrahamson at 12:55 PM | Comments (0) | TrackBack