Copyright

Viacom and YouTube Fight Continues

By Rob Abb *

ViacomThe 2nd U.S. Circuit Court of Appeals revived lawsuits by Viacom Inc. and the English Premier League over the use of copyrighted videos that were appearing on YouTube without Viacom’s permission.  The Court sent the case back to a lower court to determine whether Google and YouTube “purposefully ignored the infringing material that was posted on the site.”  Although the Court did not rule against YouTube, it does require YouTube to defend itself in the lower court and show that it did not have prior knowledge that users were uploading copyrighted materials on its site.

In 2007, Viacom filed a $1 billion lawsuit against Google and YouTube to stop users from uploading and viewing copyrighted materials owned by Viacom.  In its complaint, Viacom alleged that Google had engaged in “brazen” copyright infringement and that over “150,000 unauthorized clips of [Viacom’s] copyrighted programming” appeared on YouTube and had “been viewed an astounding 1.5 billion times.”  The complaint went on to allege that YouTube “engage[d] in, promote[d] and induce[d]” the infringement. Continue reading »

Epic Court Fight Leaves Barbie Reeling: Mattel Appeals Multi-Million Dollar Award to MGA in Copyrights Case

By Tierryicah Mitchell *

Mattel Barbie doll battling MGA Bratz dollThat’s right.  There is trouble in the dollhouse with no hope of a truce in sight.  Barbie vs. Bratz.  Who needs professional boxing when Mattel (Barbie) and MGA (Bratz) have been duking it out in court for years with no end in sight?  However, these dolls aren’t fighting for the love of Ken, but rather over the intellectual property rights to the Bratz franchise.  More specifically, attorneys for Mattel alleged that MGA’s creation of the Bratz doll constituted trademark and copyright infringement against the Mattel Empire.

But how did all of this fighting start?  Surely, there must have been a time when Bratz and Barbie peacefully coexisted in the dollhouse.  Sadly, there was not.  Like all epic battles, the legal war between Mattel and MGA’s conflict has a beginning, or, a first shot fired.  In this case, the proverbial gun was fired by a former Mattel designer named Carter Bryant, and the proverbial first shot was Mr. Bryant’s creation of the scantily clad, edgy Bratz doll in 2001.  An article written by Margaret Talbot on New America Foundation’s website provided the following description of the Bratz doll: “Bratz dolls have large heads and skinny bodies; their almond-shaped eyes are tilted upward at the edges and adorned with thick crescents of eye shadow, and their lips are lush and pillowy, glossed to a candy-apple sheen and rimmed with dark lip liner.”  Interestingly enough, Mr. Bryant was still a designer at Mattel when he created the Bratz doll.  Perhaps this would not have ruffled Robert Eckert, who is the CEO of Mattel, the wrong way had the Bratz doll not been a such a success.  At the peak of the Bratz doll in 2006, it generated almost $1 billion in sales. Continue reading »

JBIPL Symposium Speakers Address Fair Use Doctrine and its Impact on Artists

By Lena Mualla *

The Wake Forest Journal of Business and Intellectual Property Law’s Avenue of the Arts symposium got started with Session 1, an illuminating lesson on the topic of copyrights and the fair use doctrine.  The session featured two speakers from the trademark and copyright group at Kilpatrick Townsend, Allison Scott Roach and Joseph M. Beck.

Allie RoachRoach began by introducing the settled law on copyrights and fair use.  Under 17 U.S.C. §102, original works of authorship such as literary works, musical works, dramatic works, motion pictures, and sound recordings, are protected, so long as they are fixed in a tangible medium of expression.  17 U.S.C. §106 establishes the rights that attach to a protected work of authorship, which include the exclusive rights to reproduce the work and prepare derivative works.  However, section 106 rights are subject to the fair use doctrine, which has roots in common law but has been codified in 17 U.S.C. § 107. Continue reading »

Intellectual Property and the Creative Arts: The Interplay Between Two Seemingly Different Fields

By Chris Hewitt *

The Wake Forest Journal of Business and Intellectual Property Law hosted its annual symposium on March 23, 2012.  The symposium, entitled “Avenue of the Arts:  Connecting Creativity, Economics and the Law,” focused on the relationship between intellectual property law and the creative arts.  The first panel of the morning was entitled “Intellectual Property and the Creative Arts.”  The panel featured Robert Rehm and Professor Mike Mireles, both of whom gave presentations before fielding questions from the audience.  Practitioner Zaneta Robinson joined the presenters on the panel during the question and answer session.

Robert RehmMr. Rehm is a partner at Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., in Raleigh, North Carolina, and an adjunct professor at both the Wake Forest University School of Law and the Wiggins School of Law at Campbell University.  Mr. Rehm’s practice focuses on licensing and protection of intellectual property rights.  The presentation began with a summary of copyright law that covered copyrightable subject matter, the rights of copyright owners, and the consequences of assignments of rights under a copyright.  Mr. Rehm discussed a recent study concerning the creative arts and economic development.  The study examined the effects of copyright-related capital, which includes the following:  human capital, personal computers, bandwidth (transmission of works), and internet access.  The study found that copyright-related capital positively contributes to economic development.  This positive effect on economic development leads to an equally positive effect on trade.  Likewise, a harmonization of copyright policies between countries positively impacts trade between those countries. Continue reading »

Symposium Seeks to Make Copyright Law Palatable for the Creative Public

By Sarah R. Riedl *

On March 23, 2012, the Wake Forest Journal of Business and Intellectual Property Law held its annual symposium focusing on the intersection of intellectual property rights and the creative arts.  Many of the esteemed panelists focused on artists’ propensity to shy away from copyright pursuits to protect the creative aspects of their works.  Whether the rationale for artists’ copyright aversion is from lack of understanding copyright law, placing higher importance on the creation of new pieces, or another reason is not always clear.

Steve VirgilSteve Virgil, Director of the Community Law and Business Clinic at Wake Forest University School of Law, suggests that law relating to the arts involves discrete issues that are not widely known in the local art community.  Therefore, the Clinic serves artists in the Winston-Salem area by providing help negotiating and entering contracts, reviewing employment agreements, and establishing intellectual property rights.  According to Virgil, legal counsel helps artists continue to do what they are passionate about by taking the complexities of the law off their hands. Continue reading »

With its Recent Megaupload Indictment, the Government Gets Aggressive in its Efforts to Curtail Copyright Infringement

By Lena Mualla *

Megaupload.com now redirects to this FBI anti-piracy warning

Megaupload.com now redirects to this FBI anti-piracy warning

The recent indictment of the owners of Megaupload.com, a Hong Kong based-file-sharing site that is incredibly popular in the U.S. and throughout the world, is noteworthy because of its timing.  The indictment, coupled with a site seizure, occurred on the very next day after citizens vocalized their outrage over the SOPA/PIPA legislation in a nationwide day of concerted activism, causing Congress to back away from the bill.  SOPA/PIPA would have allowed the government to take down sites with infringing content without demonstrating any wrongdoing on the part of the host site.  Currently, the government must first issue warnings called takedown notices to establish knowledge on the part of the site before any site seizure takes place.  So, why is the timing questionable?  The very provision that citizens fought against, and ostensibly prevailed in defeating, still remained: the government was able to seize the site, Megaupload.com, based on a mere charge.  The 2008 PRO-IP Act and civil asset forfeiture laws serve as the legal basis for such site seizures. Continue reading »

So Much for the Public Domain: Supreme Court Broadens Congressional Copyright Powers in Golan v. Holder

By Jason Weber *

copyrights symbolChina and Russia are once again at the top of a U.S. list ranking countries with the worst records of preventing copyright theft.  The list, published annually by the Office of the U.S. Trade Representative, attempts to encourage other countries to strengthen their copyright laws and crack down on piracy through what essentially amounts to public shaming.  If a similar list had been published 100 years ago, however, the United States would have been the one blushing.

Up until the 1890s, the U.S. refused to give any copyright protections to foreign authors.  In fact, the practice of publishing foreign works without paying royalties was so rampant that the U.S. was known as the “Barbary coast of literature” and “the buccaneers of books.”  While subsequent copyright laws granted limited protections to foreign authors, Congress refused to join a 100-year-old international treaty extending full copyright protection to authors in other countries until 1989.  By that time, however, millions of foreign works had already entered the public domain in the U.S. Continue reading »

A Man With Grand Ideas

By Pierce Haar *

Newt GingrichAlways one for “grand ideas,” Newt Gingrich surely felt right at home playing “Eye of the Tiger” at various rallies in recent months, including during a speech on the night of the Iowa caucus.  The song was the theme for “Rocky III” and topped the charts in 1982.  However, a member of Survivor, the band who famously wrote and performed the song, did not feel the same way about Gingrich’s use of the song.  Survivor’s guitarist-songwriter, Frankie Sullivan, sued Newt Gingrich on January 30, 2012 for copyright infringement.  The lawsuit seeks to enjoin Newt Gingrich from using the song during his campaign and also seeks damages from the court for past infringement.  Mr. Sullivan claims that he is not suing Newt Gingrich for political reasons, but rather to enforce the copyright of Survivor’s famous hit.  Mr. Sullivan’s attorney claims that they tried to reach out to Newt Gingrich’s camp for months in order to resolve the issue outside of court, but to no avail. Continue reading »

SOPA/PIPA, Foe to Internet Content Providers: Gone for Good, or Making a Comeback?

By Lena Mualla *

Stopsopa Standard news release "Internet goes on Strike"Supporters of bolder anti-piracy legislation, led by Hollywood, are dissatisfied with the current safeguards enacted to combat internet file-sharing.  The current legislation in place, the 1998 DCMA, requires sites to remove pirated materials upon any request made within the safe harbor period.  Beyond the safe harbor period, a service provider is no longer liable.  SOPA/PIPA (respectively, the House of Representatives’ Stop Online Piracy Act and the Senate’s Protect IP Act) are the recent failed attempts at extending the reach of the government when it comes to alleged copyright infringements on the internet.  Instead of a simple obligation to take down infringing content after a request, called a “takedown notice,” is received, there would be an obligation for each site to proactively keep an eye out for an infringing content; once the infringing content is posted, the site owner, for example, YouTube, would risk being shut down entirely.

Therein lies one of the chief criticisms of SOPA/PIPA: by having the government remove non-infringing content along with the infringing material, the constitutional guarantee of a right to free speech is violated. Continue reading »

Intellectual Property and Pinterest

By Jeremy Smith *

Pinterest LogoThe popularity of Pinterest has exploded over the past year.  The online platform, which allows users to post or “pin” images that they find interesting, is viewed by some as a creative community platform and by others as a serious threat to copyright holders.  While some businesses have chosen to use the platform to launch marketing campaigns, independent photographers and graphic artists are increasingly wary of how their work might be used by members.  Some Pinterest members have also become concerned about how the site’s terms of service (TOS) allocate responsibility for use of copyrighted materials.

photo credit: Kristiewells (http://www.flickr.com/photos/kristiewells/6710257121/)

photo credit: Kristiewells (http://www.flickr.com/photos/kristiewells/6710257121/)

Given the ephemeral nature of internet law, it is as yet unclear what long-term impact Pinterest might have on debates about digital rights ownership.  At the heart of the potential copyright problems associated with Pinterest is the intricate field of intellectual property law.  Courts have struggled to reach a consensus about what does—and does not–violate the rights of intellectual property holders.  The field is largely precedent-driven, meaning that website developers may not fully understand the repercussions of the platforms they launch.  It is certain that users of Pinterest may be liable to legal action thanks to legislation that allows law enforcement agencies to obtain the IP addresses of copyright infringers.  Such concerns may be alleviated for now, as SOPA (Stop Online Piracy Act) has been blocked on the house floor. Continue reading »