Posts in Copyright

On Monday, September 12th, Sid Bernstein LLC, a company representing Bernstein who passed away in 2013, filed a lawsuit alleging copyright infringement on the use of the Shea Stadium footage in the recent documentary. The suit charges that Sid Bernstein is the sole owner of the Shea Stadium master tapes by virtue of being a producer of the concert event and the employer for hire of the Beatles. The infringement suit targets both Apple Corps, the multimedia corporation set up by members of the Beatles in 1968 and involved with producing the new documentary, and Subafilms Ltd. The case was filed in the U.S. District Court for the Southern District of New York (S.D.N.Y.).

The Supreme Court granted certiorari this term in Star Athletica, L.L.C. v. Varsity Brands, Inc., which considers whether typical designs on cheerleading uniforms can be copyrightable subject matter. The appeals court believed that the designs were appropriate, but my guess is that several Supreme Court justices reacted with skepticism, which is why they decided to take the appeal. Those engaged with product development eagerly await the decision in this case because there is significant judicial uncertainty about the application of copyrights to useful products, and in particular, with how to draw the line between artistic craftsmanship and industrial design. Unfortunately, this case raises rather narrow issues, and the Court will be able to resolve them while skirting the most difficult debates. Thus, I believe that those looking for hard-and-fast rules will ultimately feel no more satisfied than observers did after the Court’s decisions with patentable subject matter, such as in Bilski v. Kappos.

During the recruiting process and job interviews, open dialogues and an exchange of ideas take place between the job applicant and the company. However, when intellectual property is involved, both employers and applicants must walk a fine line between building trust versus over-disclosure. Here are some guidelines every prospective employee and employer should know about intellectual property and the interviewing process.

On Tuesday, August 9th, Ed Sheeran was named as a defendant in a copyright lawsuit filed by three heirs of American singer-songwriter Lee Townsend. Townsend, who passed away in 2003, was Marvin Gaye’s co-writer for his famous song “Let’s Get It On.” The suit, which also lists among the defendants Warner Music Group, Atlantic Records UK, Sony/ATV Music Publishing and Amy Wadge, Sheeran’s co-writer on “Thinking Out Loud,” alleges that the song “copied the heart” of “Let’s Get It On” and repeated copyright infringing melodic, harmonic and rhythmic compositions throughout the song. The case, Griffin et al v. Sheeran et al, has been filed in the U.S. District Court for the Southern District of New York (S.D.N.Y.).

The IP Licensing Guidelines, which state the agencies’ antitrust enforcement policy with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law and of know-how, were issued in 1995 and are now being updated. In the agencies’ view, the IP Licensing Guidelines remain soundly grounded, as a matter of antitrust law and economics. Nevertheless, the agencies have determined that some revisions are in order because the IP Licensing Guidelines should accurately reflect intervening changes in statutory and case law.

With the deaths of Prince and David Bowie earlier in the year, the process by which celebrity estates monetize the images and other intellectual property (IP) of the dearly departed has come into greater focus. How will they handle the onslaught of business from rights to their images and other non-musical IP? Unlike recordings and music publishing, which are covered by national law, individual states determine rights of publicity. Specifically, copyrights are federal and can be inherited by heirs such as in the Marvin Gaye case.

Reports from Japanese media indicate that Osaka-based Funai Electric (TYO:6839) will cease production of videocassette recorders (VCRs) by the end of the month. The company cited a few issues such as a difficulty to source parts and dwindling sales which dropped to 750,000 units in 2015; at its peak, Funai was selling 15 million VCR units per year. The death knell for videotape technologies has been sounding for some time. Last year, Tokyo-based electronics conglomerate Sony Corp. (NYSE:SNE) announced its decision to discontinue both Betamax videocassettes and Micro MV cassettes used for recording. The Video Home System (VHS) standard suffered a significant blow in 2008 when the last major VHS distributor discontinued sales. Although few are bemoaning the loss of videotape thanks to the convenience and higher quality of discs and VOD, production of the world’s last VCR turns our focus backwards in time to see the rise and fall of this early home video technology.

An engaging image, be it a photograph or other graphic, can capture the reader’s attention and drive interest in an online post. Bloggers, especially, are well aware of the attention grabbing benefits of a great photograph or graphic. In striving to find just the right image, one may well not think twice about the apparent harmless use of a graphic poached from some obscure corner of the internet. Doing so, however, implicates a wide range of intellectual property rights governing the use of images.

On June 30th, Judge George King of the Central District of California entered the Final Order and Judgment in the matter of Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. – the “Happy Birthday” class action. Only the amount of attorneys’ fees to be awarded to the plaintiffs’ attorneys remains, and must be decided for many of the settlement terms to become effective. Nonetheless, it is not too early to consider what, if any, effects this case will have on the field of intellectual property.

During 2016’s second quarter, plaintiffs filed a total of 1,282 patent infringement cases in U.S. district court. This is a 33 percent increase in the 958 patent cases filed during the first quarter but data suggests that the second quarter tends to see the highest level of infringement cases over all other quarters according to Lex Machina data scientists Brian Howard. “We would expect a jump up from the first quarter,” he said. The first quarter was also a trough for patent infringement cases after last November’s massive number of 847 patent cases, just more than 100 cases less than the entire docket for this year’s first quarter. “The rise we’ve seen puts this year on track with 2011 or 2012 rather than the last two years,” Howard said.

This case concerns Star Athletica’s alleged infringement of Varsity Brands’ purported copyrights in the design of certain cheerleading uniforms. Under the Copyright Act, because clothing possesses an intrinsic utilitarian function (covering the body, providing warmth and protection from the elements, etc.), clothing designs historically have not been protected by copyright unless the claimed design is physically or conceptually separable from the garment’s utilitarian features. The district court found in favor of defendant Star Athletica, concluding that the design elements in Varsity Brands’ cheerleading uniforms were not separable from the uniform’s function. The Court of Appeals for the Sixth Circuit reversed, and in doing so, devised a new test for assessing the copyrightability of a design of a useful article.

Uber has also obtained design patent protection for its user interfaces. The user interfaces would not be eligible for protection under trademark law, therefore, design patent protection is the strongest form of protection available. This protection prevents competitors or other companies from mimicking the Uber app interfaces, thus eliminating customer confusion. As the term of any design patent only lasts for 15 years, Uber will not be able to maintain the protection of the interfaces indefinitely. However, Uber will possibly be able to invoke common law trade dress protection after the expiration of design patents.

Although the type of copyright infringement that gets the most attention today in our digital age is the downloading of music and/or movies, infringement of print and picture medium (such as photographs) is also punishable under the Copyright Act, and are a very real problem for publishers and photographers alike. Indeed, copyright infringement is an unfortunate reality for all content…

The premise is simple. Turn on the radio this weekend and many, if not most, radio stations will be counting down the top songs of all time in their particular genre…. When Gene interviewed me in November 2015 we did talk about music and he tells me I’ve given him a hard time about his own top 25 songs since, which he published during the 4th of July weekend 2015. I don’t remember giving him a hard time, and if I did, well, I apologize. Although looking at his list I probably should have! In any event, I’m pleased to participate in what I understand will become a yearly endeavor with different IP professionals asked to provide their own top 25 each 4th of July weekend.

Clinton’s tech agenda revolves around five main points that she hopes will lead to American dominance in research and development as well as overall innovation. First, she’s pledged to devote resources to educational innovations that will position U.S. workers well for the well-paying tech jobs of today and the near future. Second, she’s pushing for major infrastructure upgrades that she argues will bring broadband Internet access to a much wider audience. Her third point focuses on protecting American tech export interests to countries abroad. Her fourth agenda point discusses a framework by which concepts of the open Internet as well as personal privacy can be balanced. Finally, her fifth point hones in on the ways that technology can make government agencies more efficient and effective.