Court: too close to call
A recent Second Circuit court decision appears to establish a broad fair use exception for the use of artistic works in new works. However, a careful look at the case — and especially at the examples which the court considered too close to call as a matter of law — could leave artists feeling confused about just how broad the exception really is.
The case of Cariou v. Prince involved several photographs by Patrick Cariou. Cariou published his photographs in a book entitled Yes Rasta. Artist Richard Prince altered and incorporated 25 of Cariou’s photos into various paintings and collages. Prince displayed his works in various exhibitions, and he also sold reproductions of a few of them. Continue reading
A math student with an eye for a bargain has shaken up the U.S. publishing industry after the U.S. Supreme Court ruled in favor of his textbook importation scheme.
Supap Kirtsaeng moved from Thailand to the United States to study mathematics at Cornell University. Frustrated over the high cost of textbooks at the school, he asked friends and family to purchase books in Thailand — where they were available at a much lower retail price — and ship them to him in the U.S. Recognizing the business opportunity, Kirtsaeng began reselling the imported books on eBay. Over time, Kirtsaeng generated about $600,000 in revenue from his textbook resale business. Continue reading
If a new White House memo directing government agencies to ensure that publications and data resulting from federally funded research seems familiar, that’s because it nearly matches a new bill that was introduced in the House and Senate just a week earlier.
On February 22, 2013, the White House’s Office of Science and Technology Policy issued a memo directing U.S. government agencies who annually fund over $100 million in research to implement a plan for requiring public access to data and publications resulting from that research.
The memo requires that each plan included elements for: Continue reading
At a class lecture today, my audience peppered me with some of the most thought-provoking questions that I have received about intellectual property matters. As a frequent seminar speaker on IP issues, I often lead discussions with entrepreneurs at business incubators, with attorneys at CLE courses, and executives in client seminars.
Today, my challenge was even greater: teaching copyright law to my daughter’s sixth grade class.
The task at hand was straightforward. The class was about to launch a student newspaper and website. The teachers wanted the students to understand basic copyright concepts before the kids just started copying photos and other content from websites and pasting that content into the school newspaper.
The basic legal rule was pretty straightforward, too: just because it’s on the web Continue reading
A recent decision from the United States District Court for the District of California could, if upheld, significantly limit companies’ ability to transfer its proprietary software unless the company has obtained an assignment from each and every developer.
In a decision published November 5, 2012 in Amaretto Ranch Breedables LLC v. Ozimals Inc., Ozimals argued that Amaretto Ranch infringed its copyright in software used in connection with the online virtual reality site Second Life. Amaretto Ranch filed a declaratory judgment action and argued that it could not infringe because Ozimals did not own the software. Three developers created the software, but only two of them had executed assignments in favor of Ozimals.
The court agreed with Amaretto Ranch’s argument and held that in order to transfer a copyright, all authors must agree to the assignment. Otherwise, the attempted assignment is merely a non-exclusive license. Continue reading
Is streaming Internet video a “cable service” under U.S. copyright law? ABC, CBS, Fox, NBC and other broadcasters recently asked a U.S. Court of Appeals to address that question after a streaming video service started rebroadcasting their signals over the Internet in 2010. The service, offered by ivi, Inc., allowed subscribers to view live network television over the Internet for a subscription fee of $4.99 per month.
The broadcasters’ question was is significant because U.S. copyright law gives copyright holders the exclusive right to publicly display their broadcast signals. This exclusive right generally includes the right to control retransmission, but Section 111(c) of the Copyright Act provides an exception for cable systems who pay royalties at government-regulated rates. In such situations, broadcasters are required to license their content to the cable systems so long as the cable system pays the regulated rates.
This week, U.S. Court of Appeals for the Second Circuit addressed the question and answered “no.” In WPIX, Inc. v ivi, Inc. (2d Cir. Aug. 27, 2012), the Court held that ivi was not entitled to a compulsory license because it was not a “cable system.” The court based its decision on the legislative intent of the cable systems exception, which was to address difficulties that certain geographic areas and households had in receiving broadcast signals:
Congress did not, however, intend § 111′s compulsory license to extend to Internet retransmissions. . . . Internet retransmission services are not seeking to address issues of reception and remote access to over-the-air television signals. They provide not a local but a nationwide (arguably international) service.
Finding that Copyright law required ivi to obtain the broadcasters’ consent before retransmitting content over the Internet, the Court upheld a preliminary injunction against ivi’s retransmission service.
A recent court decision relating to the design of a hookah’s water container highlights the distinction between “works of authorship” (which can be protected under copyright law) and “useful articles” (which cannot).
In Inhale Inc. v. Starbuzz Tobacco, Inc. (C.D. Cal. June 8, 2012), Inhale registered a copyight for its water container for use with a hookah. The
registration was for a “sculpture/3-D artwork” and included a photograph showing the shape of the container with a skull-and-crossbones graphic imprinted on the container.
When Starbuzz began selling a similar-looking water container, Inhale sued Starbuzz for copyright infringement. In the lawsuit, Inhale disclaimed any copyright protection to the skull-and-crossbones graphic and instead focused on the shape of the container. In its defense, Starbuzz countered that the shape was not copyrightable, because of its functional purpose.
The Copyright Act protects sculptures and other “works of authorship fixed in any tangible medium of expression.” (17 U.S.C. 102). However, copyright protection is not available for works “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information.” Continue reading
On June 18, 2012, the U.S. Copyright Office issued a Statement of Policy that limits copyright protection for exercise routines, sequences of yoga poses, compilations of dance steps and other compilations that the Office deems lacking in sufficient originality to merit copyright protection.
In the Statement, the Office clarified when it will (and will not) register a “compilation,” which is Continue reading