Sunday, December 28, 2008
Friday, December 26, 2008
The Eleventh Circuit that architectural works such as floor plans are necessarily compilations of many standard elements, such as"common windows and other staple building components." Thus, what is protectible is an architect's arrangement of such standard features. Citing the U.S. Supreme Court's Feist decision, the court found the author's copyright in such a compilation to be "thin" and limited to the selection and arrangements of non-copyrightable elements. Thus, a "narrow analysis" of only the original arrangement is appropriate. In such a case, where there is a "substantial dissimilarity" of the potentially protectable elements, summary judgment is appropriate.
The Eleventh Circuit found that the district court appropriately did not consider the similarities in the plans which related mainly to such standard features, and instead properly analyzed the arrangement of such features, which was the potentially protected copyrightable contribution of the architect. Agreeing with the district court that "no reasonable, properly instructed jury could find the works substantially similar", the Eleventh Circuit affirmed.
Sunday, December 21, 2008
In Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008), the Ninth Circuit Court of Appeals considered a dispute over the rights to merchandise the rights to a car named Eleanor in the 1974 film "Gone in 60 Seconds". The owner of the rights to the 1960 film licensed the rights to make a remake of the film (a "derivative work" under the Copyright Act). But the owner retained the right to "manufacture, sell and distribute merchandise utilizing the car known as 'Eleanor' from the Original [Gone in 60 Seconds]". The main question presented was whether the license agreement retained the rights to merchandise the "Remake Eleanor". The court found that the owner had retained the rights to "Remake Eleanor". An additional question presented was whether a car in a film could be a copyrighted character. The court discussed the caselaw distinguishing literary characters from comic book characters. Literary characters, such as Sam Spade are "difficult to delineate and may be based on nothing more than an unprotected idea". But comic book characters have "physical as well as conceptual qualities [and are] more likely to contain some unique elements of expression."
The Ninth Circuit found that "the Eleanor character"..."can be seen as more akin to a comic book character than a literary character." The court found that Eleanor "displays consistent, widely identifiable traits" and is "especially distinctive". The court based its finding on the fact that whenever a human tried to steal Eleanor, it became very difficult, and because the main human character referred to his long history with Eleanor. The Ninth Circuit remanded for a finding of whether Eleanor is entitled to copyright protection and for the district court to "examine whether Eleanor's physical as well as conceptual qualities and ... unique elements of expression" qualify Eleanor for copyright protection.
So the perfect gift for the copyright litigator who has everything? A DVD of the original 1974 and the 2000 Gone in 60 Seconds www.imdb.com. Spend your holidays discussing whether Eleanor is a copyrighted character. Compare Chitty-Chitty-Bang-Bang, Herbie the Love Bug and Stephen King's murderous Plymouth "Christine Plymouth "Christine". While Rudolph the Red-Nose Reindeer has my vote as a copyrighted character-component of Santa's sleigh, it is hard for me to see the copyrightable expression of a Ford Mustang outside its existance as an object, and no matter what the actions of humans surrounding the Ford Mustang may be, I can't see how that can be attributed to Eleanor.
Saturday, December 20, 2008
Saturday, November 08, 2008
Sunday, November 02, 2008
Last week the Minneapolis Star Tribune reported that the Minneapolis Institute of Arts had restituted Fernand Leger's 1911 painting "Smoke Over Rooftops" to the heirs of Alfonse Kann. The article is here. According to the article, it took the heirs ten years of researching and working with the MIA to achieve restitution.
Why such a delay? Many archives are not accessible, much research remains to be done. And there is very little research into a central figure in Nazi art looting: Curt Valentin. Valentin was mentioned in passing in Lynn Nicholas's excellent and groundbreaking work The Rape of Europa (now a film available on DVD).
Curt Valentin left Berlin in 1937 to establish an art gallery in New York City. The gallery was named after Karl Buchholz, one of the four art dealers appointed by Hitler to liquidate art considered "degenerate" by the Nazi regime. I have included a jpeg image above of a letter dated November 14, 1936 from the Reich Chamber of Fine Arts to Curt Valentin stating the following:
Re: Your letter of 22 September 1936
The President of the Reich Chamber of Fine Arts instructed me to tell you that it would be of no objection to him if you make use of your connections with the German art circle and thereby establish supplementary export opportunities, if [this is done] outside Germany. Once you are in a foreign country, you are free to purchase works by German artists in Germany and make use of them in America. ###
The letter bears a stamp with an eagle clutching a wreathed Swastika and is found in the Jane Wade papers, Archives of American Art, microfilm reel #2322, frame 929.
The collections of the Philadelphia Museum of Art (see provenance of El Lissitzky's Proun 2 here, the Museum of Modern Art (a search of the website finds over 40 results for Valentin including a Beckmann here) and many others are full of works purchased from Curt Valentin. When art dealer Otto Kallir came to the United States from Vienna, Austria in 1939, he went to Curt Valentin's gallery on 57th Street in New York City to pick up artworks safely transported out of Nazi Austria. Boston's Museum of Fine Arts has a Beckmann portrait of Valentin here.
Curt Valentin was also the art dealer of choice for Alfred Barr, the founder of the Museum of Modern Art. As Alice Goldfarb Marquis, author of Alfred H. Barr Jr.: Missionary for the Modern, wrote to the New York Times here,
On June 30, 1939, the Fischer Gallery in Lucerne auctioned 150 items. Many dealers boycotted the sale of these stolen works. One of the bidders was Curt Valentin, a German refugee dealer, who owned the Buchholz Gallery in New York. He was there at the behest of Alfred Barr, director of the Museum of Modern Art in New York, who provided money donated to the museum.
Mr. Valentin bought five works: Andre Derain's "Valley of the Lot at Vers," stolen from the Cologne Museum; E. L. Kirchner's "Street Scene" and Wilhelm Lehmbruck's "Kneeling Woman," both taken from the Berlin National Gallery; Paul Klee's "Around the Fish," pilfered from the Dresden Gallery, and Henri Matisse's "Blue Window," seized from the Essen Museum.
So why don't all of the other museums return the stolen artworks that they purchased through Curt Valentin? Why don't the other museums frankly acknowledge Curt Valentin's status as a Nazi agent from 1936 through the end of the war?
On Saturday, September 16, 1944, the Federal Register published an Executive Order dated May 29, 1944 describing a seizure of enemy property by the Alien Property Custodian (a U.S. official empowered by the Trading With the Enemy Act). The seizure was of Karl Buchholz's property, destined for Curt Valentin's gallery on 32 East 57th Street. The list (it looks like over 200 artworks) includes the following artist: Ernst Barlach, Max Beckmann, Marc Chagall, Edgar Degas, Otto Dix, Werner Gilles, Erich Heckel, Carol Hofer, Heinrich Campandonc, Gerhard Marcks, Otto Mueller, E.V. Nay, Emil Nolde, Gaston Louis Roux, K. Schmidt-Rottluff, Renee Sindonis, Alex Jawlensky, Oskar Kokoschka, George Kolbe, Kaethe Kollwitz, Alfred Kubin, Wilhelm Lembruck, Fernand Leger, and August Macke.
If you wish to have a moment of tranquility in New York City, you can to to the MOMA's beautiful garden. You'll find August Rodin's Monument to Balzac (1898). It was presented in memory of Curt Valentin by his friends.
Saturday, November 01, 2008
Sunday, October 26, 2008
Stuart Weitzman LLC v. Microcomputer Resources Inc., 542 F.3d 859 (11th Cir. Sept. 12, 2008).
What happens when your custom computer programmer sends you a cease and desist letter telling you that you have the right to use the software they built for you, but that you do not have the right to possess the source code and that it "cannot be modified, changed or reverse engineered by anybody."
Well, the Stuart Weitzman people responded with a declaratory judgment action. They claimed that they were being accused of copyright infringement, that the subject matter was completely pre-empted, that there was a "case or controversy", that the court had federal jurisdiction. Seems pretty simple, right?
Wrong. The computer vendor had not registered the copyright in the software program, and Weitzman did not contest that the vendor owned the copyright. Nor could the Weitzman folks think up any state-law claims that they could seriously be sued for, which might raise a federal question to be decided (interpretation of the copyright act). Weitzman argued that the "federal question" raised was an anticipated copyright infringement action, and asked the court to construe Weitzman's defenses under 17 U.S.C. Section 117 (you are allowed to copy a computer program if such copying is necessary to run the program).
So the case was dismissed on subject matter jurisdiction, simply because the computer company had neither sued nor filed a copyright registration. This result appears to be anomalous and not in the spirit of other declaratory judgment cases. It is not clear that Weitzman showed how the business would be immediately and irreparably harmed by the cease and desist letter or that the controversy was "ripe".
Sunday, October 19, 2008
The legislation was vigorously opposed by the Department of Justice, find their position here courtesy of the EFF. The main objection is that the DOJ will now have the power to bring civil actions and is forced to turn the proceeds over to private industry, essentially making what is now a private system of enforcing copyright and trademark laws a government function. The DOJ also felt that appointment of an IP Czar with the duties described in the legislation would violate the principle of separation of powers between the Executive and Legislative branches of government.
An excerpt from Senator Leahy's website:
· Title I enhances civil intellectual property rights laws and improves remedies. First, it adds a harmless error provision to the registration requirement for instituting a suit, so that an infringer cannot avoid liability based on a harmless error in a registration.
· Second, it gives copyright owners the same rights as trademark owners to impound records documenting the infringement, while including protections to ensure a court will issue an appropriate protective order.
· Third, title I increases statutory damages in counterfeiting cases and applies them not only to those who intentionally use a counterfeit mark, but also to those who supply goods necessary to the commission of a violation of the Trademark Act, if they intend that the recipient of the goods or services would put the goods or services to use in committing that violation.
· Finally, Title I applies the copyright laws not only to imported goods, but also to exported items.
· Title II improves and harmonizes the forfeiture laws governing intellectual property rights violations. It creates a new forfeiture section for both civil and criminal forfeiture, building off the model in the Protecting American Goods and Services Act passed in the 109th Congress. It protects against the possibility that third party information may be disclosed by including protections to ensure a court will issue an appropriate protective order with respect to information found on items seized.
[there is a fuller description on Sen. Leahy's site]
Here is the text of the Senate version of S.3325 courtesy of Wired. From the private litigant's perspective, note that 17 U.S.C. Section 411 is amended to permit infringements where the registration has certain inaccuracies, 17 U.S.C. Section 503 now permits seizure of the books and records of an infringer (subject to a mandatory court-issued protective order), a weapon that trademark plaintiffs have long had. For trademark cases, 15 U.S.C. 1117 has been amended to enhance statutory damages and to treble damages plus attorneys fees and prejudgment interest. Section 602 is amended to make exporting infringing goods a violation.
The press has picked up on the aspect of the legislation that appoints an Cabinet-level IP Czar called an IPEC. There are also extensive governmental agency reporting requirements on programs to exhort state and federal law enforcement authorities to learn and enforce IP laws.
Copyright is an area of the law in which federal law has completely preempted state law. Copyright and trademark laws have real teeth. Law enforcement officials and private practitioners are highly skilled in working together on these issues, particularly in combating piracy in the domestic U.S. IP laws are very confusing and hard to follow for people who do not have serious training. Senator Leahy should not be sending state troopers onto this well-trodden ground.
Let's hope the new President has a sensible approach to these issues.
Saturday, October 18, 2008
International Copyright and the First Sale Doctrine: Costco Can't Import Genuine Watches From Switzerland
"When Daniel Craig reprises his role as James Bond in Quantum of Solace, he will be wearing an OMEGA Seamaster Planet Ocean 600m Co-Axial Chronometer with a black dial [ ...]. Bond fans and OMEGA enthusiasts will know that 007 has been wearing Seamasters featuring blue dials since 1995 so the black watch face on the Seamaster Planet Ocean in Quantum of Solace marks a departure for James Bond. "
The first sale doctrine is codified at 17 U.S.C. Section 109 (a) says that if you own a copy of a copyrighted work "lawfully made under this title", you can sell or "otherwise dispose of" it. Section 109(b) says that even if you own copies of phonorecords or software, you can't rent them.
The language seemed pretty clear. So when Costco bought genuine Swiss Omega watches through someone who purchased them from an authorized dealer in Switzerland, Omega thought it perfectly legal to sell them in the U.S. The U.S. district court judge agreed, awarding Costco hefty legal fees when Omega claimed that such importation of authentic, genuine, non-piratical watches that it owned.
Copyright owners often set up territories throughout the world and appoint distributors for various territories. When a purchaser from a high-cost territory buys the copyrighted work in a low-cost territory, this is known as "gray market" goods. Retailers save money by buying from the lower-cost territory.
In Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), the Ninth Circuit reversed the district court and found that Omega could use Section 106(3) and 602(a) of the Copyright Act to claim copyright infringement for unauthorized distribution.
For the first sale doctrine to apply, there must be an authorized first sale in the United States. For a copy to be "lawfully made under this title [17 U.S.C.]" - it means made in the U.S.
The result is that even if you buy genuine copyrighted works from a foreign representative of a copyright owner, you infringe copyright if you import and sell them in the U.S. without the copyright owner's permission.
Will James Bond get busted for pawning his Swiss-purchased Omega in the U.S.?
Sunday, September 28, 2008
Saturday, September 13, 2008
Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, 87 U.S.P.Q.2d 1219 (S.D.N.Y.)(LAP). Psenicska v. Twentieth Century Fox, 07 Civ. 10972 S.D.N.Y, September 3, 2007 (Preska, J.) found here courtesy of How Appealing.
When you make a film, do you need a person's permission before you put that person's image in your film? Can you "commercialize" the person's image without their consent? And if you do obtain a "release" from the person, are there limits to what you can use the image for?
Not surprisingly, Sacha Baron Cohen of Borat and Da Ali G Show fame has pushed everyone's limits on these issues.
In making the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, Cohen went out into the streets dressed up as his fictional Borat character, accosted a man in the streets of New York City, and included the footage of the encounter in both the film and the trailer. Is that ok?
New York's Civil Rights Law Section 51 creates a cause of actions for "[a]ny person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade without" their written consent. There is a broad "newsworthiness" exception to the statute. In dismissing plaintiff's claims, Judge Loretta Preska found that Borat's childish and vulgar character was engaging in a commentary on American society and was accordingly, newsworthy.
In the Psenicska case, numerous plaintiffs executed releases that were sprung on them at the last minute before filming. The releases were detailed and indicated a consent to participate in a "documentary-style" film. During each segment, each plaintiff was subjected to offensive, humiliating and outrageous behavior from Cohen. Analyzing the question under New York contract law, the court found the term "documentary-style" - to accurately portray the Borat film's content. The court dismissed the fraudulent inducement claims, noting that such claims were specifically waived by the language in the release.
In producing a copyrighted work such as a film, one must take care to ensure that it consists of underlying content that is obtained properly. Had these issues not been litigated in New York, or release not been obtained, the result would surely have been different. The broad language of New York's Civil Rights law is narrowed substantially by the case law.
Tuesday, September 09, 2008
Most of us think of a DVR as something we buy, put underneath the television, puff out our chests and think “fair use” as we make a personal use copy.
But what if the box is miles away from your home, is owned by your local cable company, and is a massive computer monster that invites everyone to make copies from it. Has the cable company made a copy? Or did you make a copy? And if you play your copy by hitting the remote and putting the copy in the digital box in motion, did you infringe?
Well, one would have guessed that the cable company had engaged in copyright infringement, one way or another. And that’s what the local district court found. But on appeal, in an August 4, 2008 decision that will make happy those who really dig the technological questions involved in litigation over devices that make copies, the Second Circuit Court of Appeals reversed.
Why? Well, most of us acting as a plaintiff who owned a copyright would have alleged that the cable company had engaged in both direct copying and indirect or contributory infringement. Really, that DVR seems like a very Napster-like infringing mechanism that permits people who pay the cable company to make infringing copies and for the cable companies to profit.
But in a very thoughtful decision that really delves into the technology involved and the legislative history involved, the Second Circuit really digs into the question of what constitutes a copy, what is necessary for fixation of the copy and how much time a copy must exist to be a copy, with a very thorough survey of the law related to various ephemeral copies, such as a copy of a program made that boots up into your computer’s RAM. The Second Circuit found that “fixation” of the copy imposes both an “embodiment” requirement and a “duration” requirement. The Second Circuit found that the machine’s buffering system, which made a copy of .1 seconds of each channel’s programming at any one time and such content did not last for more than 1.2 seconds. The Court found that the plaintiff’s copyrighted material was not “fixed” in the buffers for an amount of time sufficient to satisfy the "duration" aspect of fixation and therefore that the buffers did not make an infringing copy.
The most interesting part of the decision discusses the question of whether or not the cable company is directly liable for creating the copies. And in a discussion of copy shop cases and the Supreme Court’s Sony v. Universal Films case, the Second Circuit emphasized that the U.S. Supreme Court and the Copyright Act really make a distinction between direct copying and contributory liability for someone who actively induces an infringement.
So the court found that it is the actual consumer who makes the copy by pre-programming the digital box to capture the incoming broadcast for later use. In the case, the plaintiffs for some reason did not allege that the cable company engaged in contributory infringement, so the lower court’s decision was reversed. The Second Circuit explicitly kept open the question of whether the cable company was liable as a contributory infringer.
On the issue of whether playing the new copy at a different time by the consumer constituted a “performance” which required a license from the plaintiff copyright owners, the court’s answer was “no”.
This is an important, difficult and complex case, and worth reading. It is likely to be influential in litigations involving services that make potentially copyrighted materials available to consumers.
Saturday, September 06, 2008
Monday, September 01, 2008
Moreover filed a motion to dismiss on November 7, 2007. A review of the docket sheet shows that AP never responded to the motion and apparently after many extensions of time, agreed on some undisclosed basis to dismiss the action. In the memorandum of law in support of the motion to dismiss, the hot case cited was Perfect 10 v. Amazon, 487 F.3d 701 (9th Cir. 2007), a case I have discussed previously that extolled the virtues of a video engine search.
In this age of Electronic Case Filing, anyone can search a federal court's docket sheet for a civil action through http://www.pacer.gov/ and pull down electronically-filed documents. The documents are in PDF format, and by hitting "Save As" you can copy a document to your computer's directory. There is a modest charge associated with getting an actual document (I think that the Moreover memorandum cost me $2.97). But if you want the blow-by-blow on a case, checking a docket sheet doesn't cost anything and can quickly let you know if you've missed anything.
According to AP's 8/18/2008 press release: "AP is pleased to have resolved the litigation in an amicable manner and appreciates VeriSign and Moreover's efforts to resolve AP's concerns," said AP Vice President and General Counsel Srinandan Kasi.
I looked at the filings dismissing the Moreover case and there was nothing to show how or why it settled.
Friday, August 29, 2008
Thursday, August 21, 2008
Friday, August 15, 2008
Sunday, May 25, 2008
From the title, you can get a sense of how the authors view fair use: copyright hardliners use the word "stealing" instead of quoting. The Report reviews the types of uses of copyrighted works in online videos:
- parody and satire
- negative or critical commentary
- positive commentary
- quoting to trigger discussion
- illustration or example
- incidental use
- personal reportage or diaries
- archiving of vulnerable or revealing materials
- pastiche or collage
The Report distinguishes people who simply make copies of popular and widely available copyrighted works and simply forward them for fun. We all agree that's stealing and will get you in trouble.
The Report makes reference to many videos available on YouTube, many of them interesting and funny. It is clear that the writers of the report believe that this video revolution is a good thing, and I agree with their assessment that this is the type of activity that the copyright laws were meant to encourage. I am glad that they are doing what they are doing and think that they did an excellent job with the Documentary Filmmakers' Statement of Best Practices in Fair Use. I am not as certain that the general proposition that "'quoting copyrighted works of popular culture to illustrate an argument or point' can be fair use" has been entirely vindicated by the courts since 2005, and to the extent that it has, there is lingering contrary authority out there that may be used to trap the unwary.
The case cited as a "prime example" is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). It is the only case cited in the Report. That case involved a book published using a small image of a Grateful Dead concert ticket on a timeline illustrating the Grateful Dead's history. It was the only use in the entire book.
Another excellent example of "quoting" being permitted is Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), which involved artist Jeff Koons using a photograph of a woman's foot from a fashion magazine in a collage painting. But this "quoting" story has a sad ending: the artist got stuck with a million-dollar bill for legal fees even though he was successful in defending his work from a copyright claim. On May 9, 2007, Judge Stanton decided in Blanch v. Koons, 485 F. Supp.2d 516 (S.D.N.Y. 2007) that Koons would be stuck paying his own legal fees:
This case involves an "appropriation" artist. Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other's work.That is particularly the case with defendant Koons, who was aware of these risks from his personal experience in Rogers v. Koons, 960 F.2d 301 (2d Cir.1992) and other cases arising from an earlier work "in which Koons slavishly recreated a copyrighted work in a different medium without any objective indicia of transforming it or commenting on the copyrighted work." Blanch v. Koons, 467 F.3d at 262 (Katzmann, J., concurring). As Judge Katzmann stated in his concurring opinion on the appeal in this case (id. at 263): This is our Circuit's second encounter with Koons' work. His work, like that of other appropriation artists, inherently raises difficult questions about the proper scope of copyright protection and the fair-use doctrine. I would continue to answer those questions as necessary to decide particular cases, mindful that the fair-use inquiry is a fact-specific one that is "not to be simplified with bright-line rules." Campbell, 510 U.S. at 577, 114 S.Ct. 1164, 127 L.Ed.2d 500.This case, as well as the fact-specific issue of fair use on which it was ultimately decided, had other distinctive aspects. Most striking was the fact that Blanch did not suffer any damages. She did not suffer, nor sue to recoup, a monetary loss. When she first saw the portion of her work displayed in Koons's painting, her immediate reaction was one of gratification. If Koons had offered Blanch a fee for using her art, it typically would have been $750 or less. Koons's painting did not interfere with any of Blanch's intended uses of her photograph, nor decrease its value. And there were issues other than fair use in the case. Defendants' motions for summary judgment also rested on the statute of limitations, claimed non-infringement due to lack of substantial similarity, and unavailability of punitive damages as a matter of law.The Court of Appeals' primary and concurring opinions, with headnotes and exhibits, require nineteen pages in the 467 F.3d report: pp. 244-263. Defendants' fee application demonstrates their belief that the defense of the case merited well over $1 million in attorneys' fees, including more than $24,000 for computer research. Applying the Fogerty factors as a guide to discretion in this unusual case, one can say that (1) it was not facially frivolous, (2) Blanch's motivation was reasonable, although it was less to recoup a monetary loss than to punish an artist who seemed to have embarked on a series of appropriations of others' work without credit or payment, (3) the legal precedents regarding Koons's work looked favorable, and (4) the particular circumstances do not demonstrate a need for imposition of fees as a deterrent to such suits. On the whole, this is not a case calling for an exercise of discretion in favor of granting attorneys' fees.
Blanch v. Koons 485 F.Supp.2d 516, 518 (S.D.N.Y.,2007). I think the subtext here is that the Judge probably feels that Koons is highly successful and profits immensely from these controversies, win or lose, whereas Blanch is a working photographer whose lawyer probably got carried away. In an earlier decision, the court noted that she had never resold any of her photographs, which appeared in Allure magazine.
The fact that many of the people making YouTube mashups are not making money at it or doing it as hobbyists is probably the most important factor in gauging the dangers lurking in these "do it yourself" videos. A couple of the examples seemed to be corporate-created or used as vehicles to highlight a product or carry advertising. That is going to be the flash-point of the future.
If this is depressing to fair use proponents, a great case to mention is Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003), involving the Danish band Acqua's hit "Barbie Girl". In that case, the artist recouped his legal fees since Mattel kept suing him in violation of his First Amendment rights.
A good case on "quoting" copyrighted works is Perfect 10 v. Amazon.com Inc., 487 F.3d 701 (9th Cir. 2007) which found that making thumbnail low resolution copies of entire photographic works for a video search engine was "highly transformative".
But there is some very very bad precedent out there. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) involved a television production that had a poster in a background shot. The poster was made by the High Museum in Atlanta. On the poster was an image of artist Faith Ringgold's Quilt. In the television show, the poster was never clearly visible, one could see up to 80% of it in the background during scenes of about 20 seconds. The district court found the use "de minimus". The Second Circuit reversed and held that there is no "de minimus" exception to the Copyright Act.
Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997) cert. dismissed 521 U.S. 1146 (1997) is a very bad parody case. A parody called "The Cat Not In the Hat" was removed from the market by Dr. Seuss. The court felt that the author was only using Dr. Seuss to make fun of O.J. and was not making enough fun of Dr. Seuss to qualify as speech protected by the First Amendment. By the same reasoning, I can't put on Mickey Mouse ears and make fun of President Bush because I am not directly making fun of Mickey.
There are also some very mean copyright and trademark owners out there, lots of takedown notices and serious financial threats. For people who have to pay their lawyers and worry about losing their homes, exploring the boundaries of free speech is fraught with perils.
When I tried to click on some of the links to the videos cited in the Center for Social Media's Report, I found that they were links to YouTube that had been taken down. Why didn't they just copy them from YouTube and host those copies on their server? If "quoting" these works is key to understanding the Center for Social Media's work, and I think it is, they should rip them from YouTube, copy them, preserve them and make them available to scholars of the future.
Sunday, February 24, 2008
Working in a complex international case, I fought for a long time to convince my European counterparts of the wisdom of Bates-numbering. Now that documents number in the thousands, they are convinced of the wisdom!
I don't know how long lawyers have been seriously Bates-numbering documents, but I recently had occasion to review the Nuremberg trial exhibits in the USGPO publication Nazi Conspiracy and Agression (1946). It seems that each international team of prosecutors was using a unique Bates-style system to stamp hundreds of thousands of documents as they were received.
Probably only lawyers could get so worked up about page numbers, but there is nothing worse than collecting useless evidence because you can't tell what a witness was looking at, or fumbling around with mis-numbered or unnumbered pages in a courtroom.
Some Bates-numbering background and history from Wikipedia:
Bates numbering (also known as Bates stamping or Bates coding) is used in the legal, medical, and business fields to place identifying numbers and/or date/time-marks on images and documents as they are scanned or processed (for example, during the discovery stage of preparations for trial or identifying business receipts). Bates Stamping can be used to mark and identify images with copyrights by putting a company name, logo and/or legal copyright on them. This process provides identification, protection, and auto-increment numbering of the images.
Bates numbering is commonly used as an organizational method to label and identify legal documents. During the discovery phase of litigation, a large number of documents might necessitate the use of unique identifiers for each page of each document for reference and retreival. Bates numbering (named for the Bates automatic numbering machine), assigns an arbitrary unique identifier to each page. Such "numbering" may be solely numeric or may contain a combination of letters and numbers (alphanumeric). There is no standard method for numbering documents. Examples of Bates numbers schemes used in tobacco cases may be found here.
Manual Bates stamping uses a self inking stamp with numbered wheels (5, 6, and 7-wheeled models are common) that automatically increment each time the stamp is pressed down on a page (some stamps allow for duplicate documents by only incrementing after two or more presses). Today, preprinted, self-adhesive labels are common as is electronic document discovery (EDD) software that can electronically "stamp" documents stored as computer files by superimpsoing numbers onto them.
The Bates Automatic Numbering Machine was patented in 1891-93 by the Bates Manufacturing Company of Edison, NJ.
Retrieved from "http://en.wikipedia.org/wiki/Bates_numbering"
Sunday, February 17, 2008
Anyone putting up a website or a blog is a "publisher" these days, so it helps to know the principles involved. What can you publish? What will get you in trouble? How do you analyze problems that arise in using content created by others?
Copyright Law and Publishing
Content Provider: Clarion LegalDuration: 2 hours 0 minutes
Program Description: This session is comprised of practical, hands-on examples designed to give participants the analytical tools with which to confront copyright issues facing publishers.
If you would like more information or want to enroll in this program, click on the program title listed above or paste this link into your web browser:
Sunday, February 10, 2008
Saturday, February 09, 2008
Date: Tuesday, February 26, 2008
Time: 6:00 pmLocation: NYCLA, 14 Vesey Street; Board Room
Sunday, January 20, 2008
The meeting is held each June and has traditionally been situated at the Sagamore Hotel on Lake George in upstate New York. This year, for the first time, the meeting will take place June 8-10 in Newport, Rhode Island. Annual meetings kick off with a special cocktail reception for new attendees, and the organization's officers make a real effort to make newcomers feel at home. The programming is diverse and entertaining, and speakers are really top-shelf.
Marybeth Peters, the Register of Copyrights, always attends, along with the top people from her office, and all major content industries are well-represented.
The field of copyright is full of oddball specialties. Attendees come from all over the US, with some foreign participation (unlike the trademark world, the foreign contingent is not particularly large). Copyright lawyers tend to have backgrounds in music, art, film, literature - and thus this gathering is usually more entertaining than most legal conferences.
The Copyright Society also has chapters. Last year I gave presentations to the San Francisco and Philadelphia Chapters. The New York Chapter has monthly luncheons (1 hour CLE credit) that are usually sold out.
If you need a painless way to pick up CLE credits this year, think about the Copright Society. I won't make it to the mid-winter meeting in Dana Point, California (Feb 7-9), but I will be in Newport in June.