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