Posts Tagged: "Copyright Litigation"

If our legal system worked properly, it would be easy enough for her to file for copyright infringement. But under our current claims system, high litigation costs make it almost impossible for authors, writers and artists to protect their livelihoods in court. Independent creators are frequent victims of piracy and other forms of copyright infringement. But without the resources of a record company or publisher, pursuing small claims is financially impossible… Fortunately, there’s a bipartisan policy fix pending in Congress. It’s called the CASE Act (H.R. 3945), and it creates a system that makes pursuing small claims financially and logistically feasible.

The lawsuit is the latest example of content creators chasing down a third party that does not directly infringe content but rather facilitates infringement through a combination of its own hardware and third-party software… Currently, the increasingly proposed solution for safeguarding digital information is blockchain technology. Blockchain is being implemented in various industries to solve inefficiencies in areas from identity protection to supply chain management… To understand blockchain technology as a potential solution to the problems posed in the digital rights management space, one must first understand what the technology is and how it operates.

Some IP commentators love to hate the Blurred Lines music copyright decision. A primary critique has stoked unnecessary fear in musicians that the decision blurs the line between protectable expression and unprotectable style or genre. Much of the animosity, however, is based on misunderstanding or misconstruing the law or facts. This post clarifies this aspect of the case to show why the district court decision was reasonable and should be affirmed in the current appeal at the Ninth Circuit.

Like other opinions in the IP arena, the Supreme Court’s decision in Star Athletica v. Varsity Brands has created a new legal rule with limited practical guidance that will inevitably lead to less predictability in an already-murky area of copyright law.  Its new “imaginative separability” test for copyright eligibility for useful articles, such as footwear, clothing, and furniture, may be so easy that few designs will fail to qualify.  Yet, ultimately, Star Athletica may have the unimagined consequence of making copyright protection less desirable for qualifying designs. For those who seek the benefits of the Court’s undeniable expansion of potential copyright protection for useful designs, a bit of caution may be the appropriate response.

On November 20th, both Peter Gene Hernandez, the American singer-songwriter-producer who goes by the professional name Bruno Mars, and New York City-based Warner Music Inc. were named as defendants in a copyright case filed in the Southern District of New York by Burbank, CA-based photographer Catherine McGann. The lawsuit targets Mars’ social media use of a photograph of himself taken by McGann when Mars was performing as an Elvis impersonator as a child.

On Thursday, October 19th, the creators of the 1984 rock band mockumentary This Is Spinal Tap filed a second amended complaint against French mass media company Vivendi SA (EPA:VIV) in the Central District of California. The lawsuit, which includes trademark and copyright claims, alleges that Vivendi and its subsidiaries provided fraudulent accounting to the plaintiffs which resulted in greatly reduced royalty payments over the course of decades. The plaintiffs, which include the movie’s director Rob Reiner as well as performers/co-creators Christopher Guest, Harry Shearer and Michael McKean, are seeking more than $400 million in compensatory and punitive damages from Vivendi and Universal Music Group.

Characters for Hire also argued that the trademark infringement claims lacked the essential element of confusion. Citing to Naked Cowboy v. CBS, a case decided in Southern New York in 2012 involving trademark infringement claims asserted by a Times Square street performer against the use of his likeness in the soap opera The Bold and the Beautiful, Characters for Hire argue that the use of the names of fictional persons are merely descriptive of the entertainment services provided by the defendants. “Indeed, Plaintiff Disney is well aware of the limits of trademark enforceability having successfully defended a claim brought against them for using the famous ‘Caterpillar’ trademark for construction trucks in one of their films,” Characters for Hire argued. This statement references Caterpillar Inc. v. Walt Disney Co., a 2003 case decided in the Central District of Illinois wherein the court ruled that Disney’s use of construction vehicles with Caterpillar logos in the movie George of the Jungle 2 created no likelihood of confusion that Caterpillar either endorsed or sponsored the movie.

A complaint was filed in the Northern District of California on behalf of Naruto, at the time a six-year-old crested macaque residing in the Tangkoko Reserve located on the Indonesian island of Sulawesi… The plaintiffs argued that Naruto is the author of the monkey selfie and has the right to own and benefit from the copyright to that photo. “Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner,” the complaint reads. Although the plaintiffs acknowledge that claims of authorship by members of species other than homo sapiens are novel, they argue that 17 U.S.C. § 101 defines authorship broadly enough that Naruto should be afforded a claim of copyright ownership.

My intuition is that the judge came to the correct conclusion, but that the Supreme Court test ultimately did little to guide her thinking.  As I mentioned in my previous IPWatchdog article, determining the contours of the useful article is a metaphysical exercise that likely will require other “tests” to resolve.  Why, for instance, does the useful article not consist of the lighting elements, sockets, wires and covers, which the judge admits also serve important utilitarian functions?  What factors caused her to draw the line so that the covers were not included within her concept of the useful article?  My guess is that it came down to the fact that in her view, “The primary purpose of the cover is artistic; once the covers are removed, the remainder is a functioning but unadorned light string.” 

An increasing trend in copyright infringement suits filed in the United States has tattoo artists bringing suit against entertainment entities, and in some cases against the tattoo bearer themselves, for the reproduction or recreation of tattoos they created. Most commentators would likely conclude that tattoos are eligible for copyright protection under the Copyright Act. However, it is important to note that a distinction can be made between the copyright in the design of the tattoo and the copyright in the tattoo as it is reproduced on the body of a person

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.

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.

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 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.