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Practical Perspectives on Intellectual Property Legal Developments

Category Archives: Copyright

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Aereo “Performs Publicly” and Therefore Illegally

Posted in Copyright
We have previously posted our analysis of the oral arguments held before the Supreme Court in American Broadcasting Companies, Inc., et al., v. Aereo, Inc., No. 12-451, this past April. On June 25, 2014, the Supreme Court announced its decision in the case, holding that Aereo performs the television broadcasting companies’ copyrighted works publicly through the function of their service/system within the meaning of the Transmit Clause of the Copyright Act of 1976. The Court tried to carefully limit its holding to only the facts particular to Aereo’s system in order to avoid precluding the development of “cloud computing,” a still burgeoning field of technological and economical promise… Continue Reading

Clouds on the Horizon: The Supreme Court Hears Oral Arguments in Aereo

Posted in Copyright
Last week, the Supreme Court heard oral arguments in American Broadcasting Companies, Inc., et al., v. Aereo, Inc., No. 12-451, a copyright action whose outcome could dramatically shape the future of television and cloud computing. Aereo is an internet start-up that uses arrays of dime-sized, customer-specific antennas to stream and store on-demand, over-the-air television, likening its technology as an alternative to an individual using, for example, an antenna and DVR to legally capture and record over-the-air content for private viewing. Fearing the loss of their intellectual property rights and lucrative retransmission fees, a consortium of broadcasters promptly sued Aereo for copyright infringement in March 2012 in the Southern District of New York. The broadcasters sought a preliminary injunction against Aereo, arguing that Aereo’s service amounted to thinly veiled public performances, and therefore, constituted copyright infringement. The SDNY, and subsequently the Court of Appeals for the Second Circuit, both ruled in favor of Aereo, citing the 2008 Second Circuit Cablevision case (Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2nd Cir. N.Y. 2008)), which established the legality of using hosted DVRs to store and replay content to individual subscribers… Continue Reading

The ART Act: New Legislation Proposes Royalties for Visual Artists Based on Secondary Sales

Posted in Copyright
When music is sold, or a poem or novel is purchased, the composer or writer receives a portion of the initial sale or royalties on future sales of copies of the work. The more copies of a song, composition or book that are sold, the greater the royalties the composer or writer may receive. However, this is not true for all copyrightable material, particularly certain works of visual art such as contemporary paintings or sculptures. Unlike music and written works, that are mass produced and distributed, visual art, as noted by United States Copyright Office, “are produced singularly and valued for their scarcity.” The artist may receive a one-time fee or commission for their original work, but such works are often resold at auction with the artist rarely receiving any additional payment… Continue Reading

Ghost Rider Copyright Case Going to Trial

Posted in Copyright
Following a status conference held on June 27, it appears that the copyright case relating to ownership rights in the comic book super hero "Ghost Rider" will be going to trial in the Southern District of New York in November… Continue Reading

Ghost Rider Copyright Case Lives On

Posted in Copyright
Last week, in Gary Friedrich Enters., LLC v. Marvel Enters., Inc., the Second Circuit reversed the lower court's dismissal of a lawsuit brought by Gary Friedrich, who created the comic book super hero "Ghost Rider," ruling that Friedrich could maintain his lawsuit against Marvel Enterprises Inc. regarding his ownership rights in the character… Continue Reading

The Laws of Physics and Copyright Law: SDNY Rules that First-Sale Doctrine Does Not Apply to the Resale of “Used” Digital Media

Posted in Copyright
Owners of books and music in physical media form need not fear if ever they decide to sell, rent, or otherwise dispose of these copyright-protected materials. The first-sale doctrine permits such activities by extinguishing a copyright owner's exclusive right of distribution of copyrighted items that have been lawfully sold or transferred. However, according to a recent federal court ruling, Capitol Records, LLC. v. ReDigi Inc., No. 12 Civ. 95 (S.D.N.Y. March 30, 2012) owners of digital versions of the same works may find it more difficult to sell, rent, or otherwise dispose of their digital files… Continue Reading

Kirtsaeng v. John Wiley & Sons, Inc.: U.S. Supreme Court Reverses Lower Courts and Determines That International Copyright Exhaustion is Now the Rule

Posted in Copyright
Online resellers, used book stores, art galleries, and museums, among others, apparently can now breathe a sigh of relief and continue to display and resell goods originally sold or manufactured outside of the U.S., without the specter of a potential copyright infringement action looming on the horizon… Continue Reading

Freelancer of “Live to Ride” Logo and Harley-Davidson Settle Their Dispute

Posted in Copyright
Closing the loop on our previous report, freelance commercial artist Wayne W. Peterson and the Harley-Davidson motorcycle company have reached a confidential settlement in their copyright spat. Peterson had alleged that the iconic motorcycle maker stole his copyrighted "Live to Ride" logo, created in 1985 and the "Harley-Davidson University" logo, created in … Continue Reading

The Copyright Office Expands DMCA Exemptions to Broaden the Use of Technological Controls

Posted in Copyright
Last week, the U.S. Copyright Office published new exemptions to the Digital Millennium Copyright Act ("DMCA"), making circumvention of certain technological measures for restricting access to copyrighted works legally acceptable. The exemptions took effect on October 28, 2012, and will last until the end of … Continue Reading

Freelancer Survives “Live to Ride” Logo Dispute with Harley-Davidson — For Now

Posted in Copyright
A pending action in the Eastern District of Wisconsin serves as a reminder of the need for clarity and specificity in any IP-related deal, and in this case, in a matter involving copyright. Wayne W. Peterson is a freelance commercial artist who produced various commissioned works for the Harley-Davidson motorcycle company from the mid-1970s through the mid-2000s. Two of Peterson's works, the "Live to Ride" logo, created in 1985 and the "Harley-Davidson University" logo, created in 1991, are the subject of Peterson's Complaint… Continue Reading

IPXI: Set to Debut This Summer

Posted in Copyright
We previously reported on the Intellectual Property Exchange International ("IPXI"), the "world's first financial exchange focused on IP rights," as well as its recent developments and sponsorships. The IPXI seems on course to commence operations this summer, or early fall. The article, published last week in IP Law360, provides an in depth look at this new market for monetizing IP assets, as well as some considerations for those contemplating the IPXI for their IP portfolios… Continue Reading

Pinterest: Potential IP Pitfalls for New Social Networking Trend

Posted in Copyright, Trademark
Pinterest, a play on words of "pin" and "interest," is a virtual, online "pin board," where user's can organize and share things they find on the web. While Pinterest is attracting a loyal community of social media users, the site is also the source of some concern for those same users and owners of intellectual property… Continue Reading

SOPA and PIPA Have Been Shelved

Posted in Copyright, Entertainment
On Wednesday, January 18, 2012, thousands of internet companies including Google and Wikipedia protested against the Stop Online Piracy Act (SOPA) proposed by the Senate and its counterpart in the House, the Protect IP Act (PIPA). For example, Wikipedia blacked out its website while Google collected over 7 million signatures for its anti SOPA and PIPA petition. Since the high profile protests, key congressional supporters have withdrawn their support, questioning the viability of both bills… Continue Reading

Caveat Author: Understanding Copyrights, Revisited ….

Posted in Copyright
We previously reviewed a copyright case involving Marvel and a comic book author's relinquishment of any copyrights in the iconic characters Hulk, Spiderman, the X-Men and others because the works were determined to be "for hire." Marvel Worldwide v. Kirby. In an unrelated action, Judge Forrest of the Southern District of New York recently found in favor of Marvel, in Gary Friedrich Enters., LLC v. Marvel Enters., Inc. The court ruled that the plaintiff writer, Gary Friedrich, although he indisputably conceived of the character, "Ghost Rider," and wrote the initial comic book, had ceded all rights in the character to Marvel… Continue Reading

Copyrights in Works For Hire

Posted in Copyright
What can the Hulk, Spiderman and the X-Men teach us about copyrights? Well, artists and authors alike must understand the terms under which they are creating their works, or potentially lose any copyrights they, and their heirs, might otherwise enjoy. IP Law360 recently reported on Marvel Worldwide v. Kirby from the Southern District of New York, which underscores the importance of such understanding… Continue Reading

Gibbons Director Catherine Clayton to Host Roundtable on Internet Privacy and Emerging Issues Relating to Online and New Media Enforcement

Posted in Copyright, E-Commerce, Privacy, Trademark
Gibbons is pleased to announce that Catherine M. Clayton, a Director in the firm's Intellectual Property Department, will host a roundtable on internet privacy and emerging issues relating to on-line and new media enforcement on September 22, 2011 at 12:00 pm. This program is part of the International Trademark Association's (INTA) roundtable series, and will take place at the firm's Newark office… Continue Reading

Revisions to Federal Rule of Civil Procedure 26 – New Untested Protections for Testifying Experts

Posted in Copyright, Litigation, Patent
On December 1, 2010, the latest version of the Federal Rules of Civil Procedure went into effect. As part of the new rules, significant changes were made to Rule 26 regarding the discovery of information from experts retained to provide testimony. As of Wednesday, witnesses who were not previously required to provide a written report must now provide a summary disclosure of their opinion. In addition, draft expert reports and some communications between expert witnesses and counsel will no longer be discoverable, and expert reports will now only need to contain information regarding "facts or data considered by the witness in forming" an opinion… Continue Reading

Library of Congress Says You Can Jailbreak Your Smartphone

Posted in Copyright
On July 26, 2010, the Library of Congress ruled that "jailbreaking" of smartphones is a fair use under the Copyright Act. Under the Copyright Act, the Librarian of Congress is required to review classes of works every three years for exemptions to the ban against circumventing technological measures that control access to copyrighted materials. The purpose for the triennial review is to determine whether users of copyrighted works are adversely affected by the anti circumventing ban in their ability to make noninfringing uses of copyrighted work. As part of its decision making process, the Copyright Office provides notice of its rulemaking, solicits input from the public and makes a final recommendation to the Library of Congress… Continue Reading

Reed Elsevier v. Muchnick: Copyright Registration is Not a Jurisdictional Requirement

Posted in Copyright
Last week, the Supreme Court issued its highly-anticipated decision in Reed Elsevier v. Muchnick. The decision arose out of a class action settlement between publishers and authors following the Supreme Court's holding affirming copyright infringement in New York Times, Co. v. Tasini. The Southern District of New York certified the settlement, but the Second Circuit reversed, holding that pursuant to §411(a) of the Copyright Act, the Court lacked subject-matter jurisdiction to approve the settlement because the settlement covered both registered and unregistered works. The Supreme Court reversed, holding that the registration requirement of §411(a) was a claim processing rule and not a jurisdictional requirement. It left open, however, the question of how strictly §411(a) should be applied… Continue Reading

Copy Machine or Copy Service? “Volitional Conduct” and Direct Copyright Infringement

Posted in Copyright, E-Commerce
Is a technology provider liable for direct copyright infringement when it provides the means for infringement instructed by its users? In the Cablevision case, Cartoon Networks LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the Second Circuit endorsed a line of cases holding that the provider is not liable absent "volitional conduct" that causes the copying to take place. Two recent district court decisions in the Southern District of New York appear to have applied this rule in seemingly inconsistent fashion… Continue Reading
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