Posts Tagged: "US Copyright Law"

Some circuit courts have held that a work is “registered” and the copyright owner can sue an infringer as soon as the applicant files the application, deposits a copy of the work and pays a fee.  This is known as the “application” approach.  Other circuit courts follow the “registration” approach which requires the Copyright Office to act on the application—by examining it and either approving or refusing it—before the copyright owner may file suit. So, which approach is correct? We should soon have an answer as the United States Supreme Court has agreed to hear Fourth Estate Public Benefit Corporation v Wall-Street.com, LLC to resolve this issue and finally decide what it means to be “registered.”

While existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk.  If the original graffiti artist cannot be found, or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.

In 2011, ReDigi Inc. introduced technology that effectively attempted to establish a secondary market for “used” digital music files, where owners who had legally downloaded music files from iTunes could sell the music that they no longer wanted.  In a nutshell, the system allowed the owner of a digital file to transfer the music to ReDigi’s cloud storage locker, from which ReDigi could then sell it to a willing buyer for a lower price than the cost of an “original” purchase from the iTunes Store.  When a sale was made, Redigi would retain 60% of the sales price, while the seller and artist got 20% each. Although the process of transferring a file from an owner’s personal computer to ReDigi required that it be reproduced on ReDigi’s server, the system removed the file from the owner’s personal computer as the file was moved.  Capitol Records, the copyright owner of many music files sold over the ReDigi system, sued ReDigi for copyright infringement, alleging that the company reproduced and distributed its copyrighted works without permission.

In traditional music recording, artists have had to choose to license their music through major music industry organizations like ASCAP and BMI. In the age of streaming music through Spotify, Pandora and other services what is the purpose of these organizations? The licensing groups have served as clearinghouses for smaller players in the music industry who cannot feasibly deal with multitudes of licensees on their own. But with Taylor Swift and other “major” artists choosing to deal—or not deal—with the streaming services that opens the question about blanket music performance licenses.

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

In Star Athletica Breyer laments that the majority is ignoring the statute, refers to copyrights as a monopoly, and explains that copyrights are a tax on consumers… These seemingly innocent comments demonstrate a breathtaking dishonesty, which is hardly a newsworthy conclusion, or even much of a revelation to anyone in the patent community. Still, over the past few days the drivel that has been sprinkled into Supreme Court opinions has been particularly nauseating. The ends justify the means for the Supreme Court. When it is convenient they defer to Congress and wax poetically about the importance of stare decisis, as they actually had the gall to do in Kimble v. Marvel Entertainment. When adhering to well-established rules and expectations of an entire industry is inconvenient, they create exceptions to statutes, ignore statutory schemes altogether, and overrule generations of well-established law.

On Wednesday, March 22nd, the U.S. Supreme Court handed down a decision in a copyright case, which clarifies federal copyright law surrounding whether features incorporated into the design of a useful article are eligible for copyright protection. In a 6-2 decision, the Supreme Court held in Star Athletica, LLC v. Varsity Brands, Inc. that such features are eligible for copyright protection if they can be perceived as a work of art separate from the useful article and would qualify as an protectable work if imagined separately from the useful article.

Although the type of copyright infringement that gets the most attention today in our digital age is the downloading of music and/or movies, infringement of print and picture medium (such as photographs) is also punishable under the Copyright Act, and are a very real problem for publishers and photographers alike. Indeed, copyright infringement is an unfortunate reality for all content…

At the end of her speech Pallante mentioned that she had just received a letter from the Senate Judiciary Committee, specifically sent by Senator Chuck Grassley (R-IA), who Chairs the Committee, and Ranking Member Senator Patrick Leahy (D-VT). The letter from Grassley and Leahy asked the Copyright Office to undertake a study and to report back on a number of software copyright issues. Pallante read a portion of the letter received from the Senate Judiciary Committee, which said: “As software plays an ever increasing role in defining consumer interactions with devices and products, many questions are being asked about how consumers can lawfully use products that rely on software to function.” She then remarked that this inquiry goes away from copyrights merely protecting expressive content, and further pointed out that the Senate is asking about works that are protected by copyright but still functional.