Last Friday, the 11th Circuit Court of Appeals vacated and remanded the Northern District of Georgia’s 350-page fair use analysis of the electronic reserves practices at Georgia State University (“GSU”). Although this reversal is technically a win for the plaintiff publishers, the 11th Circuit left the most important parts of the lower court’s analysis intact, and essentially affirmed the bulk of its reasoning with respect to the first and fourth fair use factors. We have previously written at length about GSU’s electronic reserves, the District Court’s opinion, and… More
As autumn sets in and Halloween approaches, my mind turns to jack-o-lanterns, skeletons, and phantoms. Phantom marks, that is. Equally incorporeal though perhaps somewhat less frightening than their ghostly namesakes, phantom marks are registered trademarks that contain a “phantom,” or changeable, element. A well-known phantom registration was _ _ _ _ _ _ FOR DUMMIES for various self-help books, where the dotted line represented different descriptive terms that vary according to the subject matter of the book. A hypothetical example of a phantom mark is… More
Close on the heels of the settlement between Marvel Comics and Jack Kirby’s heirs, which ended their dispute over copyright in a number of iconic comic book characters, the heirs to one of Superman’s co-creators, artist Joseph Shuster, lost out on the chance of a Supreme Court hearing in their effort to wrest copyright in the Man of Steel away from DC Comics. Like Kirby’s heirs, Shuster’s heirs had attempted to invoke 17 U.S.C. § 304(c) by sending notices to DC Comics in 2003, purporting to terminate the… More
Search engine optimization is a vital issue for brand owners. When a potential customer searches online for Company A, a well-known brand, Company A naturally wants its own website to be as high in the search results as possible and, ideally, at the top of the list.
But Company A is not alone. Its competitor, Company B, wants to show up in the search results as well. In fact, many a Company B, by purchasing Company A’s name as a “keyword” from a search engine (an “AdWord” as offered by… More
As regular readers of this blog will know, comic book superheroes frequently find themselves at the center of legal disputes over copyright in fictional characters. In many cases, both sides agree that the characters in question are sufficiently delineated to merit copyright protection, but disagree over which party owns the copyright (and the lucrative royalty stream from sequels, movies, etc.). The answer is often complicated by the historical structure of the comic book publishing industry, in which artists and writers frequently collaborated,… More
On September 26, 2014, the District of Massachusetts shot down a plan to develop a “textbook dictionary.” James Richards, inspired in part by the Autobiography of Malcolm X, developed a project to convert the dictionary from a reference book into something that looked more like a textbook. Richards felt that this format would be more conducive to helping students and adults improve their reading and listening comprehension skills.
October is Pro Bono Month in many states, including Massachusetts, New York, Michigan, New Hampshire, Maine, Rhode Island, Indiana, Tennessee, and Alabama. The ABA has created an annual weeklong National Pro Bono Celebration, which this year is October 19-25. Recognizing the countless lawyers who devote their time and efforts to representing people of limited means, and urging all lawyers to do more, these pronouncements remind us that every attorney has an ethical responsibility to make sure that our system of justice is open to all persons, regardless of income. In… More
The National Advertising Division is holding its annual conference this week in New York, and Foley Hoag is in attendance for what many consider to be the leading conference of its kind. Day One saw an impressive line-up of panelists and speakers, beginning with an address by Federal Trade Commission Chairwoman Edith Ramirez, who outlined areas of particular focus over the coming year: weight loss claims, cognitive benefit claims, and celebrity-hyped claims, among others.
The speakers have addressed a number of hot topics that will likely dominate the false advertising landscape… More
Last week, Judge Alvin Hellerstein of the Southern District of New York issued his opinion Fox News v. TVEyes. Fox News claimed that TVEyes’ media monitoring service was copyright infringement. TVEyes argued that it was fair use. Here is our summary version of the case:
What is TVEyes?
TVEyes is a media-monitoring service that records content from over 1,400 TV and radio news outlets, and uses speech-to-text technology to create a searchable database of transcripts of that content. TVEyes subscribers include corporations, the U.S. military, the media, the White House… More
This past Friday, the keynote speaker at the Boston Bar Association’s Annual meeting was Adam Liptak, Supreme Court Correspondent for the New York Times. Mr. Liptak focused his remarks on the First Amendment views of his predecessor, journalist Anthony Lewis, the author of Gideon’s Trumpet and in many ways the father of modern legal journalism. Mr. Liptak’s remarks were of particular interest to the Massachusetts audience, who also knew Mr. Lewis as a resident of Cambridge and long-time partner of former Supreme Judicial Court Chief Justice, Margaret Marshall. We summarize some of Mr. Lipak’s… More
Last month, the Missouri Court of Appeals, Western District, held that a public university was not required to turn over copies of certain course materials, including course syllabi, in response to a public records request. The syllabi were the type of document that is normally subject to disclosure under Missouri’s “Sunshine Law” (Chapter 610 of the Revised Statutes of Missouri), which allows members of the public to gain access to government records. However, there was one problem: copyright.
The Sunshine Law Request
In 2012, the National Council on Teacher Quality… More
In July 2014, Judge Barbara Jaffe of the New York Supreme Court dismissed the defamation claims in Kramer v. Skyhorse Publications. Kenny Kramer, the real life inspiration for the beloved eponymous Seinfeld character, had sued comedian Fred Stoller and his publisher because Stoller had written that a guide on the “Kramer Reality Tour” was shouting the catch phrase “not that there’s anything wrong with that” at passersby in Greenwich Village, “like some sort of deranged cheerleader.” According to Kramer, by reporting his tour experience in… More
Last week, the U.S. Copyright Office announced the release of a public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the administrative manual for the Register of Copyrights. A significant achievement spanning over 1200 pages, this is the first major revision in decades. Unlike prior editions, which served primarily as an internal guide to Copyright Office staff, this edition was drafted with an eye towards also serving “as a guidebook for authors, copyright licensees, practitioners, scholars, the courts and members of the… More
Professor Nimmer once identified the “weakest infringement claims of all time” as those involving attempts by copyright holders to prevent their copyrighted work from being used as evidence against them in court. “It seems inconceivable,” Professor Nimmer wrote, “that any court would hold such reproduction to constitute infringement either by the government or by the individual parties responsible for offering the work in evidence.” But this scholarly warning has not prevented many plaintiffs from trying — and failing — to use copyright law to keep evidence out of civil and criminal trials, or to punish the parties who introduced… More
In Southern California Darts Association v. Zaffina, the Ninth Circuit held that a corporation, whose charter had been suspended by the state of California in 1977, had standing in 2012 to sue and to own trademarks as an unincorporated association.
The corporation in question, the Southern California Darts Association (“SCDA”), has organized and promoted darts tournaments at pubs since 1963. SCDA was originally organized as a California corporation, but at some point it stopped paying its corporate franchise tax and, in 1977, it was suspended by the state. Despite the… More