Gibbons Law Alert
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 1991.
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 2015.
Just as design patents for smart phones and yoga pants are recently making headlines, the Senate Judiciary Committee has approved a bill, S. 3523, entitled the Innovative Design Protection Act of 2012, which would extend copyright-like protection to fashion designs (the “Act”). The protection of the proposed Act would extend to “fashion design[s],” defined as the appearance as a whole of an article of apparel including men’s, women’s or children’s clothing, including undergarments, outer wear, gloves, footwear, headgear, handbags, purses, wallets, tote bags, belts and eyeglass frames. Given that many other countries already have laws that provide design protection for fashion design, the passage of the Act has the potential to help encourage and sustain the U.S. fashion industry.
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.
Under the joint auspices of the US Patent and Trademark Office the National Institute of Standards and Technology/Manufacturing Extension Partnership, the IP Awareness Assessment is now in the beta stage and available for businesses and inventors to assess their intellectual property awareness. Dubbed “A business and inventor’s IP education tool,” this web-based offering is designed to assess IP knowledge and provide personalized training resources for businesses and inventors.
On Wednesday, January 18, 2012, thousands of internet companies including Google and Wikipedia protested against the Stop Online Piracy Act (SOPA) proposed by the House and its counterpart in the Senate, 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 House and Senate supporters have withdrawn their support, questioning the viability of both bills.
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.
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.
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.
In Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. March 18, 2010), Judge Denise Cote issued a narrowly tailored injunction against republication of financial services firms stock recommendations. FlyOnTheWall.com (Fly) collected and published summaries of stock analyst reports within minutes after they were released by financial institutions to their clients. FlyOnTheWall sometimes included summaries of the research reports, but following commencement of the suit it only published headlines such as “EQIX: Equinox initiated with a Buy at BofA/Merrill.” Three financial institutions filed suit against Fly for hot news misappropriation and copyright infringement.