Copyright News
February 21, 2013
EU Court of Human Rights Photography Copyright Decision
A fascinating and unusual decision of first impression (published only in French) was issued by the European Court of Human Rights (ECHR) involving the rights of photographers to use photographs taken at French fashion shows. Under French law, the fashion houses own the copyrights to any photos taken at a show. In the case, Ashby Donald and others v. France [ECtHR (5th section), 10 January 2013], the Court clarified for the first time that a copyright infringement conviction based on illegally reproducing or publicly communicating copyright protected material can be deemed an interference with the rights of freedom of expression and information under Article 10 of the European Convention.
Read more: EU Court of Human Rights Photography Copyright Decision
February 20, 2013
New Batmobile Decision
A very interesting 1/26/2013 decision out of the C.D. Cal., ruling on cross summary judgment motions, finds in favor of DC Comics (Warner) that the iconic Batmobile® is akin to a “character” protectable by copyright as opposed to an unprotected functional automobile.
January 23, 2013
DNJ rules that issued registration not application is necessary for infringement action
Fueling the growing split among district and circuit courts, on 1/4/2013, D.N.J. Judge William Martini ruled in North Jersey Media Group Inc. v. Sasson that actual registration of a copyright, not a pending application, is required under 17 USC 411(a) in order to institute an action for infringement. Plaintiff NJMG, a news reporting company, sued Sasson (a former NJMG employee) for posting on his blog, which was critical of NJMG, certain articles written and photographs taken by NJMG journalist employees. Sasson moved to dismiss “because NJMG has only applied for, but not yet received, certificates of copyright registration.”
Read more: DNJ rules that issued registration not application is necessary for infringement action
January 14, 2013
Two new cases of note
Fox v. Aereokiller and Washington Shoe v. A-Z Sporting Goods
First, the CD Cal. granted a preliminary injunction on Dec. 27, 2012, in favor of multiple broadcast network plaintiffs in Fox Television Stations, Inc., v. Aereokiller, LLC. Aereokiller is a post-Aereo copycat that relied on the SDNY’s Aereo and 2d Circuit Cablevision decisions as a defense to infringement claims based on the public performance right respecting the retransmission of broadcast TV content.
October 17, 2012
New Judge Posner Blog - "Do patent and copyright law restrict competition and creativity excessively?"
In the current issue of an interesting new blog site started by Judge Richard Posner (7th Circuit) and noted economist Gary Becker, Judge Posner openly opines that the “most serious problem with copyright law is the length of copyright protection” and he argues for a reduction from life + 70 years. In addition, Judge Posner argues that the “next most serious problem is the courts’ narrow interpretation of ‘fair use.’” He argues that “the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible… Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity. This is not widely recognized.”
October 17, 2012
New case tests fair use in controversial anti-gay political ads
A new copyright infringement action was just filed in Denver by a male gay couple, Brian Edwards and Tom Privitere, whose engagement photo depicting them kissing each other was used w/o permission in anti-gay ads by the "Public Advocate of the United States," an organization characterized by the Southern Poverty Law Center (which is representing the couple and photographer) as a hate group. The photo was posted to a blog by the couple two years ago, but was recently copied and digitally altered to change the background by the defendant organization, which used it a smear ad campaign against Republican former-state Sen. Jean White, who had supported recent legislation to legalize gay civil unions in the state.
Read more: New case tests fair use in controversial anti-gay political ads
October 2, 2012
New News
Two developments of note:
1. American Institute of Physics and John Wiley & Sons Inc. v. Schwegman Lundberg & Woessner PA (D. Minn.). This is one of the cases filed earlier this year where publishers sued patent law firms for copyright infringement based on copies the firms made of scholarly journal articles filed with the Patent Office with patent applications in the context of legally required prior art disclosures. In January 2012, the Patent Office issued a memo stating its belief that such copying and submissions should be deemed fair use.
October 2, 2012
Fed. Claims Ct. decision on (c) damages and derivative works
Once again, we are blessed with another interesting case from the Court of Federal Claims (remember Gaylord v. US - the Korean War memorial case?), which has opined on what constitutes a derivative work and statutory damages. The case is Cohen v. The United States (Fed Cl. 6/27/12).
Read more: Fed. Claims Ct. decision on (c) damages and derivative works