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
Tag Archives: Copyright Infringement
No matter how sophisticated we are on the outside, on the inside everyone has a favorite novelty t-shirt buried deep in the recesses of their juvenile subconscious. Mine is one that says “Welcome to Philadelphia. Now Go Home,” which so perfectly captures both the convivial pride and bewildering hostility of the city that raised me.
Many five-year olds these days have a different favorite t-shirt, sold by Gymboree subsidiary Crazy8, which features the pun: “Lettuce Turnip the Beet.” One problem though: artist Elektra Gorski had been selling t-shirts… More
One of the most commonly misunderstood aspects of copyright law is the significance of intent. The elements of direct copyright infringement are (1) the plaintiff’s ownership of a valid copyright in a work and (2) the defendant’s copying of protectable expression from that work. The defendant’s intent is not part of this analysis. One hears the term “innocent infringer” thrown around, but this moniker is of far less value than is often imagined.
Take, for example, sculptor Robert Davidson’s recently-filed case against the US Postal Service (USPS) in… More
In Kenney v. Warner Bros. Entertainment Inc., No. 13-11068, 2013 WL 6212593 (D. Mass. Nov. 29, 2013), Judge Richard G. Stearns dismissed an action for copyright infringement brought by Michael P. Kenney (d/b/a Mike O’Dea and Shamrock Films) against the film studio Warner Brothers.
According to the decision, Kenney is a screenwriter, director, and actor, who began developing a Ghostman comic book and film in 2010. Kenney conceived his Ghostman character as a masked thief with… More
At some point, a legal claim is just so old and stale that it’s unfair to allow the plaintiff to bring it. The statute of limitations and the doctrine of laches are two different solutions to this same problem. The former puts specific time limits on certain types of claims. On the other hand, the equitable doctrine of laches (from the old French “laschesse,” meaning “slackness”) eschews the one-size-fits-all approach and allows a judge to use common sense and fairness to determine whether a plaintiff’s delay was unreasonable given the particular circumstances of each case.
But what happens if the… More
Electronic Arts, Inc. (“EA”), owner of the $4 billion John Madden Football videogame franchise, thought it had a pretty good defense when Robin Antonick filed suit in the Federal Court for the Northern District of California, claiming that EA had infringed his computer software copyright.
Specifically, Antonick didn’t appear to have a copy of the copyrighted source code, i.e. his original program, so the jury simply could not conduct a side-by-side comparison of the allegedly infringed and allegedly infringing works. EA felt this would make the… More
It appears that a Circuit split is developing on the issue of whether Internet services that transmit network television programs are engaged in a transmission to the public in violation of the networks’ copyrights. The networks argue that the Internet streaming services (such as Aereo) are engaged in public transmissions because large numbers of members of the public can access television programs using these services; the streaming services argue that they merely facilitate one-to-one private transmissions because their technology uses multiple mini-antennas, each dedicated to one user.
We’ve previously written about Tuteur v. Crossley Corcoran, the Digitus Impudicus copyright case in the District of Massachusetts. The facts can be summarized as follows: Blogger A posted a photo of herself giving Blogger B “the finger.” Blogger B reposted the photo as part of her response. Blogger A then issued a Digital Millennium Copyright Act (DMCA) takedown notice to Blogger B’s internet service provider, claiming that Blogger B had committed copyright infringement by republishing the photograph.
So, is Blogger A subject to liability for her questionable takedown… More
The District of Massachusetts may be becoming a center for takedown notice jurisprudence. As we have previously reported, pending before the court is the matter of Tuteur v. Crosley-Corcoran, the outcome of which may determine how much good faith is required by a copyright owner before he or she may issue a takedown notice under Section 512 of the Digital Millennium Copyright Act (DMCA).
A “Deal with the Devil”? Ghost Rider Creator Asserts that Contract Did not Give Marvel Perpetual Ownership of Copyright in Comic Book Character
As we have previously observed, superheroes often take starring roles in disputes relating to copyright protection for fictional characters. This makes sense, as they frequently appear in long-lived series of works in various media (comic books, television shows, films, etc.) sporting a consistent set of identifying characteristics – physical appearance, personality traits, “origin story,” and the like. Indeed, many such disputes take it as a settled conclusion that the superhero character is entitled to copyright protection, and rather center on disagreements over which party… More
One reason to buy physical books and music CDs rather than Kindle books and iTunes files is that when you own a physical copy of the book or music CD, you can lend it to friends. You could also, if you chose, sell your copy. These are rights guaranteed by the first sale right in Section 109 of the Copyright Act. When you buy a Kindle book or an iTunes song (or more accurately, when you license them), you have no practical way to lend or sell them. ReDigi… More
Yesterday the Second Circuit issued its decision undoing the District Court’s certification of a plaintiff class in the long-running lawsuit claiming that the Google Books Library Project violates copyright in millions of books. The plaintiffs, the Authors Guild and various individual authors, assert that Google’s practice of scanning and digitizing in-copyright books from major libraries, and making short “snippets” of those books available to the public in response to searches, is an infringement of copyright. The District Court had certified a class consisting of all U.S. authors… More
First Circuit Affirms $675,000 Award Against Joel Tenenbaum: Gore Test Does not Apply to Statutory Damages under Copyright Act
This week, the First Circuit affirmed a $675,0000 statutory damages award against college student Joel Tenenbaum for copyright infringement. The Court held that the damages award, based on Tenenbaum’s illegal downloading and distribution of 30 copyrighted songs, was not excessive or a violation of due process.
The Original Jury Award
As we have previously discussed, Tenenbaum had been downloading and distributing (via peer-to-peer networks) thousands of copyrighted songs, despite warnings from his parents, his college and copyright owners. In 2007, a group of recording companies brought a copyright infringement suit and sought statutory damages with respect to… More
Approximately a year ago, Judge Orinda Evans of the Federal District Court for Northern Georgia held that the electronic reserves practices of the library at Georgia State University (“GSU”) were, for the most part, fair use and not copyright infringement. While some were surprised by the liberal breadth of the court’s interpretation and application of the fair use doctrine, no one ought to have been surprised that the plaintiffs decided to appeal. The parties — and about a dozen amici — completed their appellate briefing last week.
Big changes may be afoot in copyright law these days, via both litigation and legislation. Courts are considering sweeping infringement claims with potentially far-reaching implications, and Congress is beginning the process of a massive overhaul of copyright statutes. We provide here a brief rundown of some recent developments.
Authors Guild v. Google
As we have reported previously, the Authors Guild and representative individual authors have been waging a long-running battle in the Southern District of New York against Google’s GoogleBooks project, an effort to digitize the collections of major… More