Posts in Copyright Litigation

The total number of intellectual property claims included in all commercial cases is higher than the figure of 11,643 commercial cases including at least one IP claim. “It turns out to be incredibly hard to build a Venn diagram that reflects the types of IP claims included in these commercial cases,” said Brian Howard, Lex Machina data scientist and the author of the commercial litigation report. “It turns out to be its own mini-Venn diagram within a Venn diagram, some of the cases are patent and trademark and commercial, so there’s overlap within that IP circle.” Of the different types of intellectual property claims which are included in commercial litigation, trademark claims are by far the most common, occurring in a total of 8,277 commercial cases; that’s 15 percent of all commercial cases filed since 2009. Copyright claims were brought in a total of 3,260 commercial cases filed since 2009, a total representing about 6 percent of all commercial cases. Patent claims were brought in 2,219 commercial cases, or only about 4 percent of the total.

Legal protection for databases in Canada is, perhaps surprisingly, a little convoluted. In some jurisdictions, unique database rights have been legislated (e.g. the EU). This is not yet the case in Canada where protection instead comes from a patchwork of rights provided by different regimes. Traditional intellectual property (“IP”) rights provide some protection, but with sufficient gaps to make exclusive reliance on IP inadvisable… In the decision, the Competition Tribunal found that the information in the MLS database does not attract copyright protection. The decision sets out the Tribunal’s attempt to apply the relevant copyright case law to determine whether copyright subsists in the overall arrangement of information in the MLS database.

During the second quarter of 2017, a total of 1,138 patent cases were filed at the U.S. district court level, an increase of 18 percent when compared to first quarter filings. However, that uptick in patent suits between the first and second quarters of 2017 repeats a trend which has played out since 2013. Compared to the second quarter of 2016, patent case filings were actually down 7 percent on a year-over-year basis. From the beginning of 2016 through the end of 2017, U.S. district courts have seen some of the lowest levels of patent litigation in district courts on a quarterly basis. Interestingly, the Lex Machina update shows a significant decline in case filings in the Eastern District of Texas (E.D. Tex.) correlating strongly with the Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, a case which restricted the statute on proper venue for patent infringement cases.

In mid-June, this case was overturned on appeal after a federal judge in the U.S. District Court for the District of Nevada (D. Nev.), entered a finding of judgement as a matter of law in favor of defendant DeVito’s fair use defense. As the judge noted, at most 145 creative words from the biography, constituting about 0.2 percent of the 68,500 words comprising that work, was the plaintiff’s basis for copyright infringement. “This factor strongly weighs in favor of a finding of fair use, at least where the ‘heart’ of the Work was not infringed,” the order reads. Further, the biographical nature of the work meant that uncopyrightable facts about DeVito’s life, and not the author’s writing style, comprised the heart of that work. As well, the 12 similarities between the biography and the musical accounted for 0.4 percent of the musical’s script and 0.2 percent of the running time, according to the recent court order.

A few weeks ago, a New York federal judge ruled that Hip-Hop Artist Drake was protected by copyright’s fair use doctrine when he sampled a spoken-word jazz track on his 2013 song “Pound Cake,” saying the artist had transformed the purpose of the clip. Drake used 35 seconds of Jimmy Smith’s 1982 “Jimmy Smith Rap” without clearing the clip, but Judge William H. Pauley said Drake’s purpose in doing so was sharply different from the original artist’s goals in creating it.

Arista Networks (NYSE:ANET) was recently successful in its attempts to overturn the validity of a patent held by San Jose, CA-based tech multinational Cisco Systems (NASDAQ:CSCO). The recent ruling of the Patent Trial and Appeal Board (PTAB) clears the way for Arista to overturn a ruling of the U.S. International Trade Commission (ITC), which has prevented Arista from importing and selling networking equipment in the U.S. due to patent infringement violations.

The $43.5 million from the recent Spotify settlement will reportedly go towards a separate fund to compensate publishers and songwriters. Such payments made by Spotify and other streaming services to copyright owners are known as mechanical royalties. Mechanical royalties are usually paid when a copy of a song is made, such as when a music publisher creates a CD containing copyright-protected songs. Although Spotify doesn’t sell or distribute physical media, it does owe mechanical royalties when it streams a copy of a song to a user.

Businesses were recently given a harsh reminder about the effects of failing to obtain permissions when using photography for commercial purposes when a California woman sued Chipotle earlier this year for $2.2 billion. According to the complaint in the Chipotle case, in 2006, a photographer approached the plaintiff outside of a Chipotle restaurant and asked her to sign a consent form about some photographs taken inside the restaurant. The woman refused, but in 2014 and 2015, she found a photograph of herself edited into promotional materials placed on the walls of several Chipotle restaurants in California and Florida. This case serves as a reminder that any business that uses a person’s image for commercial purposes must first obtain that person’s consent.

The Voice, So You Think You Can Dance, The X-Factor and may other TV shows have become popular worldwide. All these shows were adapted for TV viewers in various countries, so they could watch their “local” product. Today, a TV format is the moving force of progress within the television industry. As the first TV formats were created, their owners started to think about how best to protect their intellectual property rights. The thing is, a TV format is not recognized as intellectual property either by national regulations or under the Berne Convention on the Protection of Literary and Artistic Works… It’s important to understand that to create a TV format, it is necessary to develop a TV program template containing the detailed description of a show and its and its constituent elements (music, the number of hosts and their roles, the set, etc.).

One of the key findings is that only 938 patent infringement actions were filed in district courts during the recent quarter, a total which is the lowest for a single quarter since the third quarter of 2011 when only 921 such cases were filed… The U.S. District Court for the Eastern District of Texas (E.D. Tex.) remains the most active court for patent infringement suits, receiving one-third of all patent infringement cases filed in 2017’s first quarter.

On March 27th, 1997, the 9th Cir. decided to affirm a preliminary injunction prohibiting the publication and distribution of The Cat NOT in the Hat!, a parody of the O.J. Simpson murder trial told in the style of Dr. Seuss… Geisel had passed in 1991 but Dr. Seuss Enterprises filed a copyright and trademark infringement suit against Penguin and Dove seeking the injunction before the work was published. Seuss alleged that The Cat NOT in the Hat! misappropriated protected elements of copyrighted works, infringed upon six unregistered trademarks and one registered trademark and diluted the distinctive quality of the Seuss marks. On March 21st, 1996, the injunction sought by Seuss was granted in district court, enjoining the distribution of 12,000 books, which were published at a cost of $35,000.

The Supreme Court recently issued its decision in Star Athletica v. Varsity Brands, which addressed whether copyright protection can extend to the graphic designs depicted on cheerleading uniforms. The sole inquiry in Star Athletica was the meaning of a provision in the Copyright Act which permits copyright protection for the design of a pictorial, graphic or sculptural work, but only to the extent that the design can be identified separately from, and is capable of existing independently of, the utilitarian aspects of the article. Essentially, the question in Star Athletica was whether a copyright could extend to a graphical design that allegedly made a useful product more desirable because it satisfied the aesthetic demands of target purchasers. But will the Supreme Court’s decision in Star Athletica lead to more expansive protection for clothing designs? The result, I fear, is that the decision will serve to raise more questions than it resolved.

Uber is initiating a patent purchase program and is accepting submissions through May 23, 2017. British musician Ed Sheeran settles a copyright infringement suit that alleged “Photograph” was infringing. The Ninth Circuit deals a blow to websites that allow users to post photographs of celebrities, ruling that summary judgment was inappropriate and that agency theory is applicable under DMCA safe harbor provisions. The Andy Warhol Foundation preemptively files a DJ action against a photographer, the Federal Circuit denies rehearing in Unwired Planet v. Google, the ITC takes judicial notice of the PTAB refusing to institute IPR proceedings, and IBM teams with Teva Pharmaceuticals to apply cognitive tools to drug discovery.

The original lawsuit filed in December 2015 targeted The Big Bang Theory’s use of the song Soft Kitty, a song which the character Sheldon Cooper asks people to sing whenever he’s sick or needs mothering. The lyrics to that song were written in the 1930s by Edith Newlin, a published children’s author and mother of the two plaintiffs listed in the case. The lyrics were published by Willis Music Company in 1937 in a compilation where the song was titled Warm Kitty. Willis renewed the copyright registration covering the collection of nursery school songs in 1964. The plaintiffs alleged that this renewal served to register and renew Newlin’s rights to the Soft Kitty lyrics. This, the plaintiffs reasoned, required Willis to request permission from Newlin or her successors to license the song to Warner Bros. Entertainment, producers of The Big Bang Theory.

The ruling has wide implications for both the fashion apparel and home furnishings industry, both of which rely on distinctive, eye-catching designs to sell products. The upshot for clothing and furniture companies is that the Varsity Brands ruling gives product manufacturers an additional tool to combat knock-off designs. With that in mind, manufacturers should review their product line to ensure their copyright-eligible products are protected under this new standard.