Joel Tenenbaum’s Unwavering War against the RIAA: The Appellate Decision

By Vlad Vidaeff *

Tenenbaum, Nelson, and Harvard legal counsel

Tenenbaum, Nesson, and Harvard legal counsel

Part 3: The Decision

On May 21, 2012, the Supreme Court declined to hear an appeal regarding Joel Tenenbaum’s long fight against the RIAA over unauthorized file-sharing.  In short, this means that the case will continue.  The case will go back to U.S. District Court Judge Rya Zobel who will decide whether or not to uphold the $675,000 damages award on appeal.  In a brief statement, the RIAA stated, “we’re pleased with the decision.”  On the other hand, Mr. Tenenbaum is far from pleased.  He stated, “I can’t believe the system would uphold a six-figure damages amount for downloading 30 songs on a file-sharing system that everybody used.  I can’t believe the court would uphold something that ludicrous.”  Finally, the Obama administration urged the Supreme Court not to take the case as some issues remain unsolved, such as what the judge might do concerning the damages award. Continue reading »

The Black Keys File Suit as Pizza Hut and Home Depot Play a Familiar Tune

By: Rachel Waters *

Black Keys group members“Just a matter of time, before you steal it . . .” Those lyrics from The Black Keys’ “Gold on the Ceiling” proved to be prophetic when the duo along with Danger Mouse, a producer and the song’s co-author, filed a complaint in federal court in California last month. The song was another in a line of hits propelling the group’s members, Patrick Carney and Dan Auerbach, to popular fame – notably, the group scored the unique invite to perform on Saturday Night Live twice in one season. The complaint alleged that Pizza Hut (YUM) infringed on the group’s copyright by using portions of the song in one of its commercials for “Cheesy Bites Pizza.” Several days after the Cheesy Bites complaint was filed, the group initiated another infringement lawsuit against The Home Depot (HD). The Home Depot complaint contained similar allegations to those against Pizza Hut, but accused the construction megastore of using portions of the track “Lonely Boy” in commercials for a line of its power tools. Both songs were featured on the groups’ seventh album, “El Camino,” which debuted at number 2 on the Billboard 200 Chart to critical acclaim.

The complaints filed in both actions allege copyright infringement and, although an out-of-court settlement is likely, any judicial resolution of the duo’s claims will hinge on just how similar the original and commercial versions of the songs are. Both the Home Depot and Pizza Hut commercials are viewable on YouTube (clips were available as of the date this article was published). The Home Depot commercial uses an instrumental recording that sounds strikingly similar to the “Lonely Boy” track. The Cheesy Bites spot goes one step further by using sound-a-like instrumentals and ending with a familiar vocal snippet. Given the substantial similarity between the originals and the ad versions, it is difficult to see how a court would not find infringement. Still, past artists faced with similar music theft have turned to areas of the law other than copyright to enforce their claims. Continue reading »

Bitter “Suite”: Why the Fine Art Resale Royalty Act Should Not Expand

By: Emily Nahan-Krotki *

Oil paint paletteIn 1958, Robert Rauschenberg sold his painting Thaw for $960, but, only fifteen years later, Thaw resold for $85,000 at a Sotheby’s auction. Rauschenberg did not receive a penny of that profit. Outraged, Rauschenberg and many supporters of art started to lobby for fine art royalty rights. Although the concept of a fine artist receiving a share of re-sales has been widely accepted in Europe, where the mandate is known as droit de suite,” it remains controversial in the United States. Several state governments have contemplated enacting a droit de suite mandate but California is the first and only state to incorporate such a law. In 1977 California enacted the California Resale Royalty Act (CRRA), which requires 5% of the total resale price of all fine art sold for over $1,000 to be given to the original artist. While resale royalty acts have noble intentions these laws fail for many reasons. Two major issues surrounding the droit de suite laws are the failure to fulfill the legislative intent and the stifling complications of defining “art.” Continue reading »

War of the Words: Google’s French Copyright Battles Pave Way for European Market Share Expansion

By: Cory Howard *

mobile phone and booksTechnological innovations have created a dramatic increase in the demand for electronically available books, or e-books. The process of making these books accessible to the masses has created a flurry of legal activity, specifically over the digitization, or copying and scanning of books, by companies such as Google. In fact, Google’s digitization of many American books that were still under copyright resulted in a class-action lawsuit against Google by the Author’s Guild, an organization dedicated to protecting the copyrights of member authors and publishers.

These copyright concerns will only continue as Google expands its e-book business to other countries. However, it seems that Google has modified its expansion model as the company recently entered into a settlement agreement with The French Publishers Association and the Société des Gens de Lettres. These authors groups alleged that Google’s digitization of books violated French copyright law. To prevent a potentially costly lawsuit, Google entered into a 6-year settlement agreement with French publishers and authors that will allow Google to digitize out-of-print French works, but permit the publishers to retain control over the commercial use of books. Continue reading »

Prime Time for Google as YouTube Wins Copyright Battle in French Court

By Rachel Waters *

youtube logoIn the city of light, Google (GOOG) glimpsed a light at the end of the tunnel in its hard-fought battle over allegations of copyright infringement at YouTube. YouTube, a subsidiary of the search engine giant, has faced numerous infringement allegations on many fronts in the U.S. and abroad. However, in May a French court dismissed a suit brought by TF1 that claimed infringement of its French broadcasting and distribution rights in popular shows like Grey’s Anatomy and Bob L’eponge (better known as Spongebob Squarepants in the States). This dismissal by the Tribunal de Grande Instance was a turning point for YouTube, which has faced similar copyright litigation in Germany, Italy and the U.S. Although TF1, the largest TV company in France, may appeal the decision, YouTube executives were quick to declare the court’s ruling a victory. The video-sharing site had reason to rejoice over the court’s opinion that ordered TF1 to pay Google €80,000 for its legal expenses in addition to dismissing the broadcaster’s infringement claim. Continue reading »

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 »