Oh, just had to comment on this one:
• SCOTUS has passed on taking up the Perfect 10 v. CCBill case. Story on Mashable, but the deliberations and breaking of the news to the law clerks may have gone a lot like this little bit presented by MZOnline.
Tuesday, December 4, 2007
Wednesday, November 28, 2007
Copyright Law: Viewfinder 060507
Sarl Louis Fraud v. Viewfinder, 2nd U.S. Circuit Court of Appeals, No. 05-5927-cv (June 5, 2007):
Issue:
Viewfinder operates a site, "FirstView," that offers photographs from various national and international fashion shows. For old fashion shows, the viewing is free. For a current subscription to the site, it costs just shy of a thousand dollars a year. The company fashions (no pun intended) itself as an online fashion magazine of sorts. French fashion companies caught wind of the site and filed suit in the French courts. the French court system found that the pictures taken of the various designers fashions (as displayed at open-air fashion shows) were unauthorized, and the court entered judgment for the designers accordingly. The designers sought enforcement in the United States, and Viewfinder made an argument to the U.S. District Court for the Southern District of New York that it's First Amendment right of freedom of press was being stepped on by the French. The court, in a single sentence, agreed that the use of the pictures by an online magazine was obviously fair use. As such, the decision of the French court was repugnant to American law and must therefore be refused enforcement. The French designers appealed.
Pertinent issue of Copyright Law:
1) Does fair use trump the foreign intellectual property judgment in this case?
Conclusion:
To be continued, evidently. The court found that the U.S. judge dealt with the issue of fair use too cursorily to have made the proper determination. Issues such as how much of the dress designs were revealed by the posted photography of Viewfinder on FirstView and what relief or protections the French government could offer Viewfinder were unanswered by the record. The decision of the district court to not enforce the judgment was vacated pending further deliberations on the fair use angle.
Issue:
Viewfinder operates a site, "FirstView," that offers photographs from various national and international fashion shows. For old fashion shows, the viewing is free. For a current subscription to the site, it costs just shy of a thousand dollars a year. The company fashions (no pun intended) itself as an online fashion magazine of sorts. French fashion companies caught wind of the site and filed suit in the French courts. the French court system found that the pictures taken of the various designers fashions (as displayed at open-air fashion shows) were unauthorized, and the court entered judgment for the designers accordingly. The designers sought enforcement in the United States, and Viewfinder made an argument to the U.S. District Court for the Southern District of New York that it's First Amendment right of freedom of press was being stepped on by the French. The court, in a single sentence, agreed that the use of the pictures by an online magazine was obviously fair use. As such, the decision of the French court was repugnant to American law and must therefore be refused enforcement. The French designers appealed.
Pertinent issue of Copyright Law:
1) Does fair use trump the foreign intellectual property judgment in this case?
Conclusion:
To be continued, evidently. The court found that the U.S. judge dealt with the issue of fair use too cursorily to have made the proper determination. Issues such as how much of the dress designs were revealed by the posted photography of Viewfinder on FirstView and what relief or protections the French government could offer Viewfinder were unanswered by the record. The decision of the district court to not enforce the judgment was vacated pending further deliberations on the fair use angle.
Copyright Law: Loretta Lynn 060607
Loretta Lynn v. Sure-Fire Music Company, 6th U.S. Circuit Court of Appeals, No. 06-5358 (June 6, 2007):
Issue:
The short of it is Loretta Lynn and Sure Fire were battling over copy rights to several songs penned by Loretta Lynn. Loretta Lynn brought six of her claims under state law. Sure Fire protested under the equivalency rule.
Pertinent issue of Copyright Law:
1) Does federal copyright law automatically preempt any state claims over penned lyrics?
Conclusion:
No.
"Lynn carefully pleaded her first cause of action to allege only ownership claims based exclusively on the interpretation of the 1966 written amended agreement entered by the parties. She has not asserted an infringement claim or any other theory equivalent to a right exclusive to the Copyright Act. ... A claim solely to determine ownership of copyrights is not among the exclusive rights conferred by § 106 of the Copyright Act and, ordinarily, is a matter of state law."
"Lynn's second and third claims are concerned with dominion over tangible personal property ... and they fall outside the scope of the Copyright Act."
"Lynn's fourth and fifth claims seek the recovery of money for mixed tort and breach of contract claims and not for damages related to the loss of any rights conferred by the Copyright Act. Stated differently, to prevail on her fourth and fifth causes of action, Lynn must prove the formation and breach of an enforceable written contract which she would not be obligated to prove if these claims were merely for copyright infringement under § 106. They are not "equivalent" to the exclusive rights conferred by § 106. Therefore, we hold that these claims are not preempted."
Lynn's sixth claim requesting an accounting likewise does not assert any of the exclusive rights protected by the Copyright Act, but asks only for the familiar common law equitable relief of a [*12] court-ordered accounting; in this instance, of earned foreign royalties. A request for an accounting of amounts at issue in a common law breach of contract case is uniquely a state law claim and it is neither a right nor a remedy conferred by the Copyright Act. Therefore, Lynn's sixth claim is not preempted by the Act.
Issue:
The short of it is Loretta Lynn and Sure Fire were battling over copy rights to several songs penned by Loretta Lynn. Loretta Lynn brought six of her claims under state law. Sure Fire protested under the equivalency rule.
Pertinent issue of Copyright Law:
1) Does federal copyright law automatically preempt any state claims over penned lyrics?
Conclusion:
No.
"Lynn carefully pleaded her first cause of action to allege only ownership claims based exclusively on the interpretation of the 1966 written amended agreement entered by the parties. She has not asserted an infringement claim or any other theory equivalent to a right exclusive to the Copyright Act. ... A claim solely to determine ownership of copyrights is not among the exclusive rights conferred by § 106 of the Copyright Act and, ordinarily, is a matter of state law."
"Lynn's second and third claims are concerned with dominion over tangible personal property ... and they fall outside the scope of the Copyright Act."
"Lynn's fourth and fifth claims seek the recovery of money for mixed tort and breach of contract claims and not for damages related to the loss of any rights conferred by the Copyright Act. Stated differently, to prevail on her fourth and fifth causes of action, Lynn must prove the formation and breach of an enforceable written contract which she would not be obligated to prove if these claims were merely for copyright infringement under § 106. They are not "equivalent" to the exclusive rights conferred by § 106. Therefore, we hold that these claims are not preempted."
Lynn's sixth claim requesting an accounting likewise does not assert any of the exclusive rights protected by the Copyright Act, but asks only for the familiar common law equitable relief of a [*12] court-ordered accounting; in this instance, of earned foreign royalties. A request for an accounting of amounts at issue in a common law breach of contract case is uniquely a state law claim and it is neither a right nor a remedy conferred by the Copyright Act. Therefore, Lynn's sixth claim is not preempted by the Act.
112807 IP News
A brief break between briefs:
• Knievel and Kanye have worked out a settlement about that whole jumping the canyon misunderstanding. -- Yahoo! News
• Tehranian speaks of Copyright Armageddon. The entire article takes a Flying Spaghetti Monster approach to the current wisdom of copyright law. It's a great read altogether, but this part about a Captain Caveman tattoo particularly tickled me: "Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent 'destruction.'" A worthy read at -- TurnerGreen.com
• Canada wants a DMCA of its own? Oh, Canada!!?? -- The Globe and Mail
• University research for big business is the hot item these days, but Scott Jaschik thinks that universities should give up on retaining the resulting IP. -- Inside Higher Ed
• Turns out the public does know the difference between often gross and unwanted email that everyone regrets experiencing and the mass-produced-and-processed-mixed-meat-food-product of the same name. -- CNNMoney
• Pharmaceutical companies and Sweden may not be happy, but the WHO and Doctors Without Borders are reporting progress in convincing countries to start thinking about a treaty to address the accessibility of developing medical research -- EPHA
• SCOTUS has refused to address a circuit court decision finding that M2 Software was not entitled to damages from M2, the MTV second channel owned by Viacom, since the infringement was not shown to be intentional. -- The Associated Press via the Houston Chronicle
• Knievel and Kanye have worked out a settlement about that whole jumping the canyon misunderstanding. -- Yahoo! News
• Tehranian speaks of Copyright Armageddon. The entire article takes a Flying Spaghetti Monster approach to the current wisdom of copyright law. It's a great read altogether, but this part about a Captain Caveman tattoo particularly tickled me: "Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent 'destruction.'" A worthy read at -- TurnerGreen.com
• Canada wants a DMCA of its own? Oh, Canada!!?? -- The Globe and Mail
• University research for big business is the hot item these days, but Scott Jaschik thinks that universities should give up on retaining the resulting IP. -- Inside Higher Ed
• Turns out the public does know the difference between often gross and unwanted email that everyone regrets experiencing and the mass-produced-and-processed-mixed-meat-food-product of the same name. -- CNNMoney
• Pharmaceutical companies and Sweden may not be happy, but the WHO and Doctors Without Borders are reporting progress in convincing countries to start thinking about a treaty to address the accessibility of developing medical research -- EPHA
• SCOTUS has refused to address a circuit court decision finding that M2 Software was not entitled to damages from M2, the MTV second channel owned by Viacom, since the infringement was not shown to be intentional. -- The Associated Press via the Houston Chronicle
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