Yesterday, the United States Supreme Court decided Octane Fitness, LLC v. Icon Health & Fitness, Inc. and Highmark v. Allcare Health Management System, Inc., companion cases that will make it easier for prevailing parties to recover attorneys’ fees in patent infringement litigation. Together, the cases may have far-reaching consequences for litigation strategy and case management in cases involving a range of intellectual property disputes, not just patents.… More
Monthly Archives: April 2014
Yesterday, the Massachusetts Appeals Court affirmed the vacature of a $22.5 million verdict in a matter that began fifteen years ago in part as a dispute over a duplicitous authorship claim in a copyright registration. The case concerned the fraudulent autobiography: Misha: A Memoir of the Holocaust Years, a.k.a. Surviving with Wolves.
Surviving With Wolves
In 1994,… More
Court Dismisses Tarantino’s Copyright Claim Over Hyperlink To Leaked Script; Grants Leave to Amend But Notes That Fair Use Argument Is Strong
We recently reported on director Quentin Tarantino’s copyright lawsuit against Gawker Media over his leaked script for the film The Hateful Eight. The suit alleged that Gawker Media, by encouraging its readers to leak the script and then linking to the leaked script on another site, engaged in contributory copyright infringement. Gawker Media, arguing in part that a mere hyperlink could not be the basis for copyright infringement liability,… More
Once a piece of clothing has been styled, cut and shaped according to a designer’s vision, it is a form of expression arguably no less worthy of copyright protection than say, a photograph, painting, or poem. However, the “useful article” doctrine generally denies copyright protection for aspects of clothing design that are considered inherently functional or “utilitarian.” So, for example, the two-dimensional pattern on a dress may be copyrightable,… More
Quentin Tarantino probably wasn’t offended when the Hollywood gossip website Defamer, owned by Gawker Media LLC, compared him to a petulant child and accused him of throwing a “temper tantrum.” After all, the colorful characters in his films have uttered far more incendiary insults. But when the website published a story about Tarantino’s leaked script for the upcoming film The Hateful Eight,… More
Catholic Priest Permitted To Conceal Non-Privileged Nature Of Defamatory Communication Until Statute Of Limitations Runs
In a recent unanimous decision in Harrington v. Costello, the Massachusetts Supreme Judicial Court (SJC) held that the statute of limitations had run out on a Catholic priest’s defamation claim against his colleague, even though the colleague had allegedly fraudulently concealed the source of the defamatory statement.
The plaintiff, John Harrington, was a priest at St.… More
In Dardenne v. MoveOn.org, the Middle Louisiana Federal District Court faced a conflict between trademark protection, on the one hand, and the First Amendment’s protection of political advocacy, on the other. The Court concluded that trademark law cannot be used to suppress political advocacy, at least in the absence of a compelling need to protect the mark and a demonstrable likelihood of confusion.… More
Tax day presents several interesting questions for copyright holders, not the least of which is how the Internal Revenue Service (IRS) will treat income from the sale or exclusive license of a copyright. If a copyright is a “capital asset,” proceeds from its sale or exclusive license are a capital gain rather than ordinary income, and the transaction will be taxed at a much lower rate.
Prior to 1950,… More
Can Private Photos Be Used In Political Ads Without Permission? Colorado Court Rejects Gay Couple’s Misappropriation Claim; Copyright Claim Survives
When we upload family pictures to the internet, we understand that, in theory, anyone in the world might download them and use them for some nefarious purpose. However, we usually take comfort in the fact that most of us just aren’t interesting enough to be noticed. But that wasn’t the case for New Jersey couple Brian Edwards and Thomas Privitere.
In 2010,… More
Does The First Amendment Allow Journalists To Lie To Their Subjects? U.S. Senator Accuses Documentary Film Makers Of Fraud
On April 1, 2014, West Virginia Senator Joe Manchin issued a press release accusing Adroit Films of fraud. Manchin had agreed to be interviewed by the media company for a documentary about the Upper Big Branch mine disaster, which caused the death of 29 miners in 2010. However, Manchin reports that when the documentary was released on March 31,… More
On March 13, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding the copyright infringement notice and takedown procedures set forth in 17 U.S.C. § 512, the Digital Millennium Copyright Act. The focus of the discussion concerned whether the DMCA fairly allocates the burdens of copyright enforcement and administration of the takedown process among copyright owners,… More
ICANN’s new generic top-level domain name (gTLD) program has introduced opportunities and risks for companies, and probably not in equal measure. Several weeks ago, we posted some guidance regarding steps all brand owners should be taking to secure their valuable trademarks in connection with the launches of the new top-level domain names. Joshua Jarvis, a member of Foley Hoag’s Trademark,… More
Last week, Taco Bell released a TV commercial featuring real men named Ronald McDonald enjoying Taco Bell’s new breakfast items. This is very creative advertising, but is not for the faint of heart. Using a competitor’s trademarks is always a risky business. Do not try this at home. At least not without calling your trademark lawyer first.