Posts Tagged: "fair use"

Copyrights protect original works of authorship fixed in a tangible medium of expression. When photographers take pictures of individuals, there are substantial questions regarding the elements that should be attributed to the photographer’s creativity so that the work has the requisite originality for protection. Typically, the photographer’s choices regarding composition, lighting, focus, depth of field, and filtering, among many other elements, provide a sufficient basis to extend copyright protection to almost any photograph. Thus, when artists reproduce or use a photographer’s image in their pieces without permission, the photographer has a legitimate basis to complain.

The United States Court of Appeals for the Seventh Circuit last week ruled that well-known sports drink maker Gatorade’s use of the slogan, ““Gatorade The Sports Fuel Company” beginning in 2016 amounted to  fair use under the Lanham Act and therefore did not violate SportFuel Inc.’s trademark rights. SportFuel is a nutrition and wellness consulting company based in Chicago that holds two registered trademarks for “SportFuel.” Around 2013, Gatorade, a subsidiary of PepsiCo., began a rebranding effort that included public descriptions of its products as “sports fuels”. Gatorade registered a trademark for “Gatorade The Sports Fuel Company” in 2016 but disclaimed “The Sports Fuel Company” due to the U.S. Patent and Trademark Office’s (USPTO’s) notice that the phrase was descriptive of its products. However, the company continued to use the slogan.

The Court of Justice of the European Union (CJEU) has ruled that a phonogram producer can prevent another person from taking a sample, even if it is very short, and including it in another phonogram, “unless that sample is included in a modified form unrecognisable to the ear.” The Court was interpreting certain provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the 2001 Directive) in the light of the rights enshrined in the Charter of Fundamental Rights of the European Union. See Pelham GmbH, Moses Pelham, Martin Haas v. Ralf Hütter, Florian Schneider?Esleben (Case C-476/17, July 29 2019). The case concerned a two-second sample of the Kraftwerk track Metall auf Metall, which was used in the song Nur mir, composed by Pelham and Haas. Hütter and Schneider?Esleben, members of Kraftwerk, brought an action for copyright infringement in the German courts, and the Bundesgerichtshof (Federal Court of Germany) referred six questions to the CJEU.

The Eighties are in! A contagious wave of nostalgia has infected popular culture with period TV series, from shows like Stranger Things to rebirths and reboots of the era’s shows and movies. This retro cultural appropriation was bound to involve a copyright issue. Indeed, a dispute arose over a documentary on the 1985 Chicago Bears, which made an unauthorized use of the team’s landmark music video, The Superbowl Shuffle. The Shuffle’s owners claimed an infringement on the licensing market for the work. The documentarians claimed fair use. The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled for the documentarians, granting them summary judgment, in Red Label Music Publishing v. Chila Productions.

Much has been made in the last week or two of the International Trademark Association’s (INTA’s) study, Gen Z Insights: Brands and Counterfeit Products, which surveyed more than 4,500 respondents between the ages of 18 and 23 in 10 countries: Argentina, China, India, Indonesia, Italy, Japan, Mexico, Nigeria, Russia, and the United States. The study found that Gen Z’s identity is defined by three characteristics: individuality, morality and flexibility: 85% believe that brands should aim to do good in the world, and 81% feel that the brand name is not as important as how the product fits their needs. While 85% have heard of IP rights and 93% have a lot of respect for people’s ideas and creations, 79% said they have purchased counterfeit products in the past year. The two most commonly purchased counterfeit products are apparel and shoes and accessories. The three most credible sources for learning about counterfeiting are brands’ creators or employees, media personalities and social media influencers.

This week in Other Barks & Bites: the U.S. Patent and Trademark Office promotes Scott Boalick to Chief Judge of the Patent Trial and Appeal Board (PTAB); the agency also announces a new pilot program for motions to amend at the PTAB; India’s Cabinet votes to bring trademark and industrial design law into accord with international standards; a trial date is set in the copyright case brought by the heirs of Marvin Gaye against Ed Sheeran; a Southern California district judge rules that a Dr. Seuss/Star Trek mash-up is a transformative fair use; Apple alleges that someone has tampered with a key witness in the Qualcomm patent infringement case; and UK finance ministers issue a report calling for more antitrust activity against American tech giants, including Facebook and Google.

The Court of Appeals for the Second Circuit recently issued a decision in Capitol Records, LLC v. ReDigi Inc. affirming a previous finding out of the Southern District of New York that ReDigi’s digital music file reselling platform infringed upon the plaintiffs’ copyright to the music files being resold. The Second Circuit panel upheld the lower court’s decision over ReDigi’s arguments that its platform enabled the lawful resale of digital music files under the first sale doctrine.

Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.

U.S. District Judge Paul Engelmayer of the Southern District of New York recently entered an opinion and order in a copyright case involving the famed “Last Sitting” photographs of American movie star Marilyn Monroe. Although the case will continue to proceed towards a trial, Judge Engelmayer resolved various issues in the case including a determination that the owner of the copyrights to the Last Sitting photographs is the trust of the now-deceased photographer who took the photos and not Condé Nast, the publisher of the magazine Vogue where the photographs first appeared in 1962.

There’s a season every year where individuals dress-up in homemade costumes and gather for tricks, treats… and comic books? That’s right, it’s comic-con season! Many fans proudly wear costumes that they create themselves, dressing up as their favorite super hero, anime cartoon, or video game character. However, one thing they probably are not considering is whether those costumes could put them in jeopardy of a copyright infringement claim. But, since the costume industry as a whole is a multi-billion dollar industry in the United States alone, it is a consideration that could have costly consequences.

Many articles are coming out about how the recent decision in Oracle America v. Google is going to destroy the ability to create and protect software in the United States. The latest doomsday prophet is Jie Lian in his IPWatchdog article entitled Oracle v. America: Fair or Unfair. As a longtime programmer and an expert in software copyright law, I can tell you that the Federal Circuit got it right, and the decision helps software developers and encourages software development because it leaves in place the copyright protections that have existed at least since the Software Copyright Act of 1980. I am sure that most of us can agree that software development has skyrocketed since 1980.

The Federal Circuit recently decided the case of Oracle America v. Google Inc. To “attract Java developers to build apps for Android,” Google copied the declaring code, but wrote its own implementing code for the 37 Java API packages. Id at 1187.  Previously, the Federal Circuit held that “[the] declaring code and the structure, sequence, and organization (‘SSO’) of the Java API packages are entitled to copyright protection.” .  On the other hand, the Federal Circuit also recognized that a reasonable jury could find that “the functional aspects of the packages” are “relevant to Google’s fair use defense.” In this key decision that has the potential to rock the software industry, the Court of Appeals for the Federal Circuit rejected the jury verdict and found that “Google’s use of the 37 Java API packages was not fair as a matter of law.

The opinion acknowledges, in a footnote on page 3, that videos of the type that the Klein’s created, is not unique. Instead, it is part of a growing genre of “reaction videos” in which portions of an original video are interspersed with commentary to create a new creative work… Luckily for the Kleins, their fans were ready and willing to create a legal fund for their use. YouTube has also taken action to protect some content creators subject to false DMCA notices. However, with over 800 unique users, and over 100 hours of new videos being uploaded every minute, clearly YouTube cannot be required to protect all of its content creators from false copyright infringement allegations. In light of this decision, perhaps we are approaching a time where reconsideration, and revision, of the DMCA, is warranted.

These issues of fairness and fair use are played out in the recent Oracle v. Google decision. In a convoluted case that has gone up to the Supreme Court once and will again, the Federal Circuit finally was able to make a ruling that the blatant, verbatim copying of computer code is not a fair use. At issue were the copying of 37 Oracle programs or apps, constituting over 11,500 lines of code, by Google for their use in the Android operating system for smart phones and other uses… In the Federal Circuit’s final analysis of the four factors, they again noted that Google could have written their own code or properly licensed with Oracle, but instead chose to copy. “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Accordingly, the Federal Circuit held that Google’s use of the Oracle code was not a fair use.

The Federal Circuit found Google’s use of Java API packages in it’s Android operating system was not a fair use as a matter of law, resurrecting a multi-billion dollar copyright case brought by Oracle Corp against Google. With copyrightability and fair use now decided, unless the Supreme Court intervenes (which seems unlikely) this case will head back to the district court for a damages trial with the sole question being how much money Google owes Oracle America. “This is a hugely important development in the law of copyright and fair use. If it stands, there are numerous implications,” said J. Michael Keyes is a partner at the international law firm Dorsey & Whitney.