Posts in Copyright

It’s not everyday that a copyright case involves claims of false imprisonment but an order granting summary judgment entered on August 30th in the Eastern District of Texas granted a legal win to American TV personality and psychologist Dr. Phil and his production studio in just such a case. Judge Rodney Gilstrap decided to grant summary judgment sua sponte to Dr. Phil and Peteski Productions in a case against a former segment director for The Dr. Phil Show after the director recorded an iPhone video from archived footage of The Dr. Phil Show to build evidence for a emotional distress suit against Dr. Phil.

There are major concerns that websites enabling consumers to access streaming video illegally without paying, in violation of copyright, could hamper the fortunes of those broadcasting the event. On August 15th, New York City-based television channel operator Showtime Networks Inc., the exclusive producer of the live transmission of the Mayweather-McGregor fight, filed a copyright infringement suit in the Central District of California. The suit is a preemptive strike against a series of John Doe defendants operating a few dozen websites offering illicit livestreaming of the Mayweather-McGregor fight.

Atari Interactive Inc. filed a lawsuit alleging trademark and copyright infringement claims against Swiss food and drink company Nestlé SA (VTX:NESN). The suit targets a worldwide and multi-platform advertising campaign produced by Nestlé for the company’s Kit Kat candy bars, which uses elements of Atari’s Breakout video game. The suit is filed in the Northern District of California. Atari’s suit alleges that Nestlé leveraged the look of Breakout for its Kit Kat ad campaign 40 years after Steve Jobs and Steve Wozniak created the game for Atari. “To be clear, this is not a case where a good faith dispute could exist between the rights holder and alleged infringer,” the complaint reads.

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.

Twitter®, Instagram®, Facebook®, Pinterest® and other social media websites and apps are great avenues for advertising and promotion of one’s business and brand. However, in using social media to promote one’s business, there are a number of pitfalls that one must avoid. Using social media in relation to a business is not the same as using social media for personal, non-commercial use… The issues with using someone else’s copyrights, right of publicity and trademark in social media to promote a business is that the business is arguably profiting off of someone else’s property that does not belong to them. That can and does create a significant amount of conflict. Profiting from another’s property is what separates the use of social media in business from just personal use.

In the wake of recent judicial and legislative developments, protecting “what’s yours” has become even more complex. Many businesses and intellectual property lawyers have appropriately favored a strategy focused on obtaining patents when available to protect intellectual assets. However, in recent years there have been unprecedented changes to the American patent system… Developments in patent law have caused owners of intellectual capital to evaluate all available means for its protection including considering when appropriate the protection of innovations as trade secrets.

Excluding any questions regarding the rare patentability of a cake recipe, cake designs, under certain circumstances, may be protected under the laws of copyright and trademark. Specifically, for copyright, 17 USC 101 provides the relevant definition of a “pictorial, graphic, or sculptural work,” which may include two-dimensional and three-dimensional works relevant to cake designs. For example, if a cake design includes works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned, then such cake design can be protected under copyright.

Instead of using claims of trademark infringement and more expensive design patent infringement (if a design patent is even obtained), one can expect manufacturers of useful articles such as apparel manufacturers and designers to rely more often upon copyright to enforce their rights against knock-offs, and to seek more copyright registrations for design features on useful articles.

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 traditional music recording, artists have had to choose to license their music through major music industry organizations like ASCAP and BMI. In the age of streaming music through Spotify, Pandora and other services what is the purpose of these organizations? The licensing groups have served as clearinghouses for smaller players in the music industry who cannot feasibly deal with multitudes of licensees on their own. But with Taylor Swift and other “major” artists choosing to deal—or not deal—with the streaming services that opens the question about blanket music performance licenses.

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

On July 5th a federal judge entered an order granting the dismissal of a copyright case, which had been filed by the estate of famed English fantasy author J. R. R. Tolkien and American entertainment company Warner Bros. The case arises out of the Tolkien estate’s allegations that Warner Bros. was in breach of contract in using their merchandising rights to The Lord of the Rings and The Hobbit to develop video games based on those properties.

When it comes to television shows, it not always clear what is “copyrightable.” Sometimes, filmmakers and screen writers can get into serious trouble if they don’t follow specific television copyright laws accordingly. Austin-based filmmaker Lex Lybrand watched the June 4th episode of the hit HBO series “Silicon Valley” to shockingly find strong similarities between the episode “The Patent Troll” and his own film “The Trolls.” Jed Wakefield of Fenwick & West recently sat down with IPWatchdog to discuss Lybrand’s case and the impact of copyright infringement when it comes to movie scripts.

I took Gene’s request to heart and really tried to capture my top 25 songs. To be honest, however, I had a very difficult time narrowing the list to “all time” top songs. There are no true 25 best songs as proven by the various music Halls of Fame. I even had a hard time listing my top bands/artists. I enjoy many different genres and the list changes as I discover, or re-discover, music. In a pinch, however, I tend to gravitate to classic rock stations playing songs from the 70’s and 80’s. These are the songs that I grew up with. With that as a preface, here is my list for this July 4th!