Posts in Copyright

A recent recommendation by the U.S. Copyright Office allowing for the bypassing of technological protection measures (TPMs) in medical devices for purposes of repair, maintenance and service has been adopted and immediately put into effect. This is bad news for patient safety. At a time when we’re loudly and publicly debating the relative merits of the Build Back Better Act, the U.S. Copyright Office’s announcement, deep inside the Federal Register and written in very user unfriendly dense government jargon, landed not with a bang, but with a whimper. On purpose. Hiding in plain sight. This terrible ruling offered without a comment period or any other appeals mechanism, will have a profoundly negative impact on America’s public health.

As of today, the 2022 Supreme Court docket is light on intellectual property cases, with the Court having granted review of only one copyright case. However, one other major case lurks in the background on an issue—patent ineligibility—upon which the Supreme Court has already demonstrated its interest. These two cases are examined in greater detail below.

Last week, IPWatchdog selected five significant patent developments in Europe, examining what has happened this year and what can be expected in 2022. Here, we review five of the top trademark and copyright decisions and legislative changes across Europe and what’s coming up in the new year. One of the most significant trademark decisions of 2021 came in a case over Hasbro’s EUTM registration for MONOPOLY. The registration, for goods and services in classes 9, 16, 28 and 41, was declared invalid by the EUIPO Second Board of Appeal on the basis that Hasbro had acted in bad faith. On April 21, the EU General Court upheld that decision.

One of the greatest attributes of copyright law is the never-ending abundance of exciting new developments, including those in Congress, the courts, and at the Copyright Office. On the surface, copyright seems straightforward in that it advances the public good by securing property rights to authors. But underneath this simple veneer lies centuries of debate about how best to balance the rights of authors with the public interest, where each distinct issue presents a veritable rabbit hole of metaphysical distinctions. For the copyright connoisseur, keeping up with the latest events can be an exhausting endeavor, though the thrill of solving new puzzles makes it intellectually rewarding. Thankfully, one need not be a member of the copyright cognoscenti to appreciate the major developments in copyright law this past year. From the Supreme Court’s decision in Google v. Oracle to the implementation of a small copyright claims tribunal to attempts to rein in state infringements, 2021 has certainly provided many wonderful events worth highlighting.

In Part I of this series, we discussed the Federal Trade Commission’s (FTC’s) case against Everalbum as just one example where companies may be required to remove data from their machine learning models (or shut down if unable to do so). Following are some additional pitfalls to note. A. Evolving privacy and data usage restrictions Legislators at the international, federal,…

The Andy Warhol Foundation has petitioned the U.S. Supreme Court, asking it to review a decision of the U.S. Court of Appeals for the Second Circuit holding  that Andy Warhol’s Prince Series did not constitute fair use of Lynn Goldsmith’s photograph. The Second Circuit held in March that “the district court erred in its assessment and application of the fair-use factors and the works in question do not qualify as fair use.” The Court of Appeals further concluded that the Prince Series works were substantially similar to the Goldsmith Photograph “as a matter of law.” The Supreme Court petition argues that “the Second Circuit’s decision…creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art.”

On November 15, Houston-area aerial photographer Jim Olive Photography filed a petition for writ of certiorari asking the U.S. Supreme Court to take up an appeal from the Texas Supreme Court, which had denied Olive’s copyright claims against the University of Houston System on sovereign immunity grounds. In the petition, Olive requests that the Supreme Court simply grant certiorari, vacate the lower decision and remand for reconsideration of the issues in light of the Court’s decision this summer in Cedar Point Nursery v. Hassid, which was issued just a few days after the Texas Supreme Court ruled against Olive.

Picture this: A paparazzo snaps an unauthorized photo of a celebrity and sells it to a media outlet, making a tidy profit. As unfair as that may sound to the celebrity, most stars are well-aware of the established law that a photograph—even an unwanted one—can be monetized by the paparazzi. The law also is clear that, absent permission, the celebrity cannot monetize the photograph herself. Photographs, like other works of art, can be copyrighted by the paparazzi and, as with copyright, the owner possesses the famed “bundle of rights,” including the right to prohibit others from displaying the photograph for money.

Director Quentin Tarantino’s 1994 Pulp Fiction, considered among the most influential films in modern history, has emerged as a test case of sorts for issuing non-fungible tokens (NFTs) that relate to a copyright-protected work. The NFTs are being sold independent of Miramax, the producer and owner of the rights to the film, who says its ownership rights are being violated. The lawsuit, filed in the U.S. District Court for the Central District of California last week, also accused Tarantino of breach of contract, trademark infringement and unfair competition, according to court documents.

“Fair Use” is a flexible defense to claims of copyright infringement. It is a doctrine that evolves as technology and the way in which people use copyrighted works advance. As an exception to the general law prohibiting copying others’ works, it permits copying for a limited and “transformative” purpose, such as commentary, criticism, teaching, news reporting, scholarship, or research. Naturally, the way courts analyze the “fair use” defense must adapt as technology advances and the way in which creative content is developed evolves. Earlier this year, for example, the U.S. Supreme Court ruled on a landmark fair use case involving the “copying” of an Application Programming Interface (API).

Following four letters sent by Senator Thom Tillis (R-NC) to United State Trade Representative (USTR) Katherine Tai regarding the proposed waiver of intellectual property rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, Tai on November 8 replied to a July 14  letter sent by Tillis and Senator Tom Cotton (R-AR). That letter referred Tai and Commerce Secretary Gina Raimondo to a May 19 letter in which Tillis, Cotton and 14 other senators requested responses to 10 questions on the proposal to waive IP rights for COVID-19 related technology. The May 19 letter had requested Tai and Raimondo’s responses by July 19, 2021.

One recurring thorn in the side of copyright owners is Cloudflare, the San Francisco-based web performance, optimization, and security company. Cloudflare offers many services to its customers, including a content delivery network that utilizes hundreds of servers around the world to cache its customers’ content. When an end user requests content from one of Cloudflare’s customers, it is delivered to that user from the cached copy on the nearest Cloudflare server—not the customer’s own web host server. This saves on bandwidth costs, improves security, and decreases page load times. It also raises important questions about Cloudflare’s liability for contributory copyright infringement when it knowingly allows infringing content to remain on its cache servers. Under Ninth Circuit precedent, web hosting services like Cloudflare can be held contributorily liable for assisting in the infringement under the material contribution theory. However, a recent district court decision misconstrued the case law to conclude otherwise in Mon Cheri v. Cloudflare.

The U.S. Supreme Court heard oral argument today in Unicolors v. H&M. The case asks the Court to decide whether the Ninth Circuit properly construed the language of 17 U.S.C. § 411 relating to whether courts must have evidence of intent to defraud before referring copyright registration validity questions to the Copyright Office. While the questioning seemed to favor Unicolors overall, at least one Justice today asked why a change in the question presented at the merits stage of the briefing shouldn’t result in the case being dismissed as having been “improvidently granted.”

Copyright law protects artistic works. That includes literary pieces like novels, poems and other literary pieces. The original author is the one who owns the copyright of the piece. Translation raises an interesting question when it comes to copyright. Who will own the copyright of the translated work? Does it belong to the individual translator, the translation company, or to the author of the original work? Because copyright laws protect original works, translations occupy a gray area. Many would consider it to be a creative process, like the translation of poetry and other literary pieces. But then again, there are those who would contend that translation is not a creative process at all, or at least not at the same level as writing a novel. The main ideas of the work are already in place and it just has to be expressed in a different language.

Millions of content creators hoping to establish a cash machine on platforms like TikTok, YouTube and Instagram are learning that it takes more than lively moves and thousands of followers to be taken seriously. They are also discovering that not all creators are created equal, even when they are the source. Content on TikTok and other social media platforms is theoretically copyrightable. In practice, however, the IP rights of social media creators today are less clear. Work generated by lesser known creators, especially if they are young and Black, is being stolen with little apparent recourse.