Dr. Phil McGraw’s company, Peteski Productions (Peteski), recently filed a lawsuit against Gawker Media (Gawker) for copyright infringement. It appears that Deadspin.com (Deadspin), which is owned by Gawker Media, posted portions of the doctor’s exclusive interview with the man behind the Manti Te’o girlfriend hoax online before the show actually aired in various parts of the country.

Deadspin originally broke the story, including the hoaxster’s catfishing scheme; however Dr. Phil was given an exclusive interview with hoaxster, Ronaiah Tuiasosopo. Dr. Phil’s interview with Tuiasosopo was a two-part episode, with a cliff-hanging first episode. But Deadspin took away Dr. Phil’s thunder (and seemingly lowered his ratings) by showing the “answer” to the cliffhanger online prior to Dr. Phil airing in most markets.

It should come as no surprise that a nerd such as myself is into Sci-Fi, so when news of the Fox / Firefly / Shiny Hat kerfuffle hit the ‘verse, I was naturally all over it like the Alliance on an illegal salvage operation.

For those of you who are totally missing out, Firefly was a briefly lived television show that aired on Fox in 2002. It only lasted for a few months before Fox yanked the plug (a most egregious decision that I shall never EVER forgive them for). In the years that followed, Firefly – the best space western you didn’t watch – gained a cult following that gives Trekkies a run for their money. In one of the episodes, the character Jayne Cobb receives a care package from his mother containing a homemade orange and yellow poofball hat. The hat wasn’t a focal point of the episode but fans of the show, known as Browncoats, can easily be identified at conventions by wearing this most cunning hat.

Despite collecting dust on the shelf at Fox for over a decade, the fans’ devotion to Firelfly has kept the series alive. If you’ve never been to a convention like ComiCon, it’s common to see folks dressing up as their favorite character from a comic, movie, or TV Show. There may be a Viper Pilot here, a 4th Doctor there, even a Stormtrooper or two. Browncoats wear the Jayne Hat. The hat is, and has been, a favorite item of do-it-yourselfers to sell on sites like Etsy.

On March 20, 2013, Maria A. Pallante, who is the Register of Copyrights at the United States Copyright Office, testified before the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary. In her testimony she called for a comprehensive review and updating of the Copyright Act. She started her prepared remarks by explaining: “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”

During her testimony on Capitol Hill, Pallante explained that it is time to begin work on “the next great copyright act,” which is required because individuals “increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.” Pallante also lamented the fact that the current Copyright Act is cumbersome and difficult to understand, saying: “if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.”

With the prospect of comprehensive copyright reform on the horizon the familiar battle lines are being drawn between those who absolutely need copyright protection to survive and create versus those who are a part of the infringement culture. Will the comprehensive reforms necessary to protect creators or original works be possible? Will any reform be achievable? The goal of comprehensive reform seems laudable, but creators of original works must engage, both individually and by and through their various Guilds and Associations.

The Digital Millennium Copyright Act (DMCA) has recently become a hot topic in Congress. The renewed interest is the result of a “We the People” petition that successfully reached the required number of signatures to merit a response from the White House. The petition, titled “Make unlocking cell phones legal,” said, “We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” The White House fully agreed with the petition, responding, “It’s time to legalize cell phone unlocking,” and adding, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.

Within days of the White House’s response, lawmakers were rushing to offer legislative fixes compatible with the petition. Senator Ron Wyden (D-OR) was the first to introduce a bill, the Wireless Device Independence Act (S.467), which would create a permanent exemption for unlocking. Most recently, Senator Patrick Leahy (D-VT) has introduced legislation, cosponsored by four other senators from both parties, that would reverse the Library of Congress’s decision and restore the exemption.

But many proponents of the original petition reacted negatively to these legislative proposals. Derek Khanna, for example, one of the most public advocates of cell phone unlocking, said of the legislation that “the worst … approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years.”

In a recent brief ruling, Manhattan Federal District Court Judge Jed Rakoff dismissed Edward White’s lawsuit against legal research companies LexisNexis and Westlaw. An opinion had not been issued at the time of the ruling; however, the judge noted that the reasons for his dismissal would be set forth at a later date.

Background

In February of 2012, Edward White and Kenneth Elan (both of whom are attorneys) filed a class action complaint against Westlaw, which is owned by Thomson Reuters Corp., and LexisNexis, which is owned by Reed Elsevier, PLC, claiming that the companies actively participated in “wholesale unlawful copying of attorneys’ copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits.” White’s and Elan’s plan was to represent two specific classes of attorneys–those who had registered their works with the U.S. Copyright Office (as White had) and those who had not (as in the case of Elan). A few months later, though, Judge Rakoff threw out Elan’s claim, stating that “completing registration or pre-registration is a prerequisite to filing a claim.”

In Kirtsaeng v. John W. Wiley and Sons, Inc., the Supreme Court is set to decide whether the right of an owner of lawfully-made copies under Section 109(a) of the Copyright Act to “sell or otherwise dispose of”  those copies  trumps a copyright owner’s right under Section 602(a)(1) to bar importation of those copies when they were made and sold outside the United States.

The parties and amici have filed over 25 briefs in this case, almost none of which address or even consider whether the actual right granted under Section 109(a)—to “sell or otherwise dispose of” copies—applies outside the United States; instead, they have focused almost exclusively on Section 109(a)’s “lawfully made under this title” preamble, resulting in unsatisfactory readings of the Copyright Act as a whole.  As the American Intellectual Property Law Association has urged the Supreme Court in its amicus filing, applying long-standing extra-territoriality principles to the actual right created by Section 109(a) handily harmonizes both Sections 109(a) and 602(a)(1).  It also avoids damage to the rest of the Act caused by undue emphasis on the prefatory “lawfully made under this title” language.

I am pleased to announce that in January 2013 we had our biggest month ever in terms of traffic to IPWatchdog.com. During the last Quarter of 2012 we averaged 89,260 unique visitors per month. In January 2013 we had 101,922 unique visitors, which represents growth of 14.2%.

Readers have probably noticed that we are publishing more articles, and we are lucky to continue to have a growing number of periodic guest contributors and regular featured columnists as well, which likely accounts for some of this increased traffic. However, another thing that almost certainly accounts for this substantial jump in visitors is the fact that in early January 2013 we made the decision to disable copying and pasting from IPWatchdog.com. This has caused some to become quite agitated with us, with more people than you might expect writing to tell us that if they are no longer able to copy and paste our articles then they will no longer read IPWatchdog.com.

So why the change?

Love her or hate her, Lady Gaga certainly provides good fodder for news stories and blog topics.  For some reason, an infringement suit against her that started back in 2011 is now the copyright topic du jour.  A Chicago musician called Rebecca Francescatti says that Mother Monster stole part of her song  “Juda” for the hit song “Judas”.  More specifically, the complaint alleges that a particular portion of “Judas” violates Francescatti’s exclusive rights of reproduction, distribution, performance, and preparation of a derivative work.  But before we get to that, we’ll need to wade through a bit of a semantics morass.

This suit is being couched in terms of plagiarism. This is incorrect.  Plagiarism is taking someone else’s work or ideas and passing them off as your own. While the term may be linguistically correct, it is not the appropriate way to frame the issues here.  The actual basis for the suit is copyright infringement so let’s be sure to call it what it is.   While each allegation merits its own separate analysis, the biggie here is whether the accused portion of Gaga’s song is substantially similar to the relevant portion of Francescatti’s song. Sweet!  Today we get to talk about sampling- my musician friends are going to be all over this one.

In the fight over artistically designed fabric, Topson Downs of California, Inc., Target Corporation and Wal-Mart Stores Inc. has prevailed against Meridian Textiles Inc.

On October 7, 2011, Meridian Textiles filed a copyright claim against Topson Downs, Target and Wal-Mart (collectively called Defendant in court documents), claimed the used fabric designs that are solely theirs. The claim was related to 4 separate fabric designs: a zebra stripe pattern, a burnout pattern, an animal print pattern and a lace design.

Meridian Textiles is a L.A. based company which works directly with garment manufactures who are in need of printed fabric. To obtain the artwork for the fabric, Meridian creates original graphic designs or buys the exclusive rights to original artwork from art studios and artists.

In their claim against the retail stores, Meridian stated that between the years of 2008 and 2009, their in-house designer Myoung Chung had created originals of the designs in question, named Subject Designs in the claim. They stated that they “owned all the rights in the Subject Designs, and applied for, and received, copyright registrations for each of the Subject Designs. After creation of the Subject Designs, Plaintiff offered samples of the designs to numerous customers in the apparel industry, including Defendant.”

During the first quarter of the 2013, Congressional attention will be focused on budget, appropriations and debt ceiling matters – along with a few other public policy issues that have recently taken center stage – such as gun control and immigration reform.  That does not mean, however, that work on other important issues will cease, and lawmakers will have to contend with several other matters – including key copyright issues – during the 113th Congress.

Earlier this week, the House Judiciary Committee announced its members of the Subcommittee on Courts, Intellectual Property and the Internet.  Below is a discussion of some of the copyright issues that the Subcommittee, and Congress in general, is likely to consider in 2013.

General Copyright Law:

General Copyright Reform:

 2013 will mark the 15^th Anniversary of the Digital Millennium Copyright Act (DMCA), watershed copyright legislation that implemented two 1996 treaties of the World Intellectual Property Organization (WIPO), and Congress may well use this opportunity to review the general state of US copyright law, including whether the current “notice and take down” procedures instituted by the DMCA adequately protect copyright owners and online service providers alike, and well as whether current US copyright laws are adequate to deal with widespread international copyright infringement and counterfeiting practices.

Meeting in extraordinary session, the WIPO General Assembly took a landmark decision today to convene a diplomatic conference in 2013 to complete negotiations on a pact to improve access to copyrighted works for the many visually impaired and people with print disabilities around the world. The General Assembly also expressed gratitude to Morocco for its offer to host the diplomatic conference.

WIPO Director General Francis Gurry welcomed the constructive spirit of engagement among member states and the decision to convene a diplomatic conference in 2013 to agree on the provisions of an international treaty. “Member states took an important decision today in our collective efforts to facilitate access to copyrighted works by the visually impaired and persons with print disabilities” Mr. Gurry said. He added “The future treaty will improve access to published works for millions around the world.” The Director General thanked Morocco’s Permanent Representative to the UN in Geneva, Ambassador Omar Hilale, for his country’s generous offer to host the diplomatic conference.

On Thursday December 13, 2012, Google and a group of Belgian newspaper publishers reached an agreement on a 6-year long copyright dispute.

In an official statement that was released by Google, the company stated: “We have reached an agreement that ends all litigation. From now on Google and Belgian French-language publishers will partner on a broad range of business initiatives.”

Thierry Geerts, Managing Director of Google Belgium, also wrote on the Google Europe blog: “We have reached an agreement that ends all litigation and represents great news for both us and the newspapers. We continue to believe that our services respect newspaper copyrights and it is important to note that we are not paying the Belgian publishers or authors to include their content in our services.”

Yesterday the Copyright Clearance Center, Inc. (CCC), a not-for-profit organization and leading provider of licensing solutions, announced that one of the top patent firms in the United States has signed a five year licensing deal, taking advantage of CCC’s Annual Copyright License. The firm is Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P., which year after year is the top firm in terms of the number of cases filed and handled at the United States Patent and Trademark Office.

“Law firms thrive on the exchange of information,” said Miles McNamee, Vice President, Licensing and Business Development, CCC. “The Annual Copyright License gives Oblon Spivak employees the freedom and flexibility to share content with each other.”

“We think this is a win-win situation for Oblon and CCC,” said Brad Lytle, Managing Partner, Oblon Spivak. “This license allows us to go about our business and focus our efforts on protecting the intellectual property of our clients.”

But why is Oblon taking a copyright license, that is the real question?

A who’s-who of musicians and singers, including stars from Motown, Rock and Roll, Country, Rap and Jazz, today released an open letter to be published in this weekend’s Billboard Magazine opposing Pandora’s plan to cut artists’ pay when music is played over Internet radio.

The stars, who included Alabama, Sheryl Crow, CeeLo Green, Billy Joel, Maroon 5, KISS, Ne-Yo, Katy Perry, Pink Floyd, Megadeath and many others, praised Pandora, saying: “We are big fans.”  But with massive growth in revenues and a successful IPO under its belt, the artists are wondering why Pandora is pushing Congress to slash musicians’ pay.  “That’s not fair and that’s not how partners work together,” the open letter explains.

The artists’ letter also goes on to say: “Congress has many pressing issues to consider, but this is not one of them. Let’s work this out as partners and continue to bring fans the great musical experience they rightly expect.”

Clark Kent and the Daily Planet would have been all over this story. A Los Angeles judge ruled that DC Comics will retail all rights to the news reporter’s super hero secret identity. The battle of wills took place between comic book giant DC Comics and the heirs of Superman co-creator Joe Shuster. They battled to the end, with the heirs wanting more compensation, and with DC Comics stating that the heirs signed away their rights about 20 years ago.

The decision in this case means that DC Comics will retain all the rights to the Superman characters and can continue to use them in books, movies and other entertainment media. It also means that Warner Bros., which owns DC Comics, will retain the rights for use in books, films, television and other various mediums.  Given the enormous popularity of movies portraying Marvel superstars such as Iron Man, Thor and the X-Men, keeping the rights to Superman and not interrupting the new Superman movie, which is scheduled for release on June 14, 2013, is a big win for DC and Warner Bros.

The case that set up this battle started in 2010, when DC Comics sued Shuster’s heirs to seek an official ruling that the heirs had lost their rights to reclaim any copyrights to the infamous superhero back in 1992.  In a ruling issued on October 17, 2012, U.S. District Court Judge Otis Wright II sided with DC Comics, stating that Shuster had relinquished rights in exchange for annual compensation in the form of pension payments.