Copyright

Digital Databases in Danger: Authors Wage War on Libraries’ and Archives’ Digital Collections

By Sarah R. Riedl *

Racks in a library with booksWe live in a world where much of life is digitized: meetings take place over the Internet without needing to leave home, bills are paid without the use of stamps or checks, and books can be read without turning a single page.  While for a great many of us this digitization makes life simpler and more streamlined, eight authors are watching their copyrights trampled as a result of such digitization.

Eight authors and three authors’ groups have filed a copyright infringement suit against HathiTrust, a research library partnership, and several universities for their digitized book collections.  The plaintiffs claim HathiTrust and the universities have violated the Digital Millennium Copyright Act (DMCA).  The plaintiffs seek injunctive relief stopping the defendants from distributing the digitized copies and declaratory relief stating that the defendants have infringed copyrights.  Moreover, the plaintiffs do not seek any monetary damages for the alleged infringements. Continue reading »

Artists Prepare for Battle with RIAA over Looming Termination Rights

By Rob Abb *

What do Billy Joel, Bruce Springsteen, and Bob Segar have in common, besides being legends of rock and roll?  In two years, each rock icon faces a potential legal battle with his record company over rights to some of his most successful albums.

Billy Joel's 1978 "52nd Street" Album CoverCurrently, their record companies own the copyrights to some of the artists’ most famous and successful works.  However, in 2013, Joel can exercise his termination rights under the 1976 Copyright Act and regain control of his 1978 album, “52 Street.” Similarly, Springsteen can reclaim control of his 1978 album, “Darkness on the Edge of Town,” and Segar can reclaim his 1978 album, “Stranger in Town.”

How are Joel, Springsteen, and Segar planning to reclaim their work?  When Congress passed the Copyright Act in 1976, it included a new property right – a right that authors or their estates can use to recapture ownership and control of copyrights by terminating past assignments or licenses of those works following a set number of years.  The right is granted to authors, including songwriters, poets, novelists, painters, etc., and ensures that grants of even the entire copyright can be terminated, regardless of consideration or what the contract specifies.  Accordingly, Congress made the termination right “inalienable.” Continue reading »

Former Rutgers QB Hart’s Case Against EA Sports Falls Incomplete

By Joseph Norman *

Rutgers Quarterback Ryan Hart

Ryan Hart in action: http://www.nj.com/rutgersfootball/index.ssf/2009/06/former_rutgers_quarterback_rya.html

“Point Guard, number 3 for three!” might be the call you hear from your Xbox 360 when you are playing EA Sports’ NCAA Basketball with Chris Paul and the 2004 Wake Forest Demon Deacons.  Even though Chris Paul just dialed up downtown, the announcer did not refer to him by name.

EA Sports cannot name Chris Paul in the video game because they would need to have a license to do so; however, the NCAA prohibits players from making money off of their publicity rights so players cannot license their name to EA Sports.  Instead, EA Sports uses Paul’s physical attributes, sports statistics, and biographical information to represent the virtual Paul.  In other words, when a user plays EA Sports’s NCAA Basketball and selects Wake Forest’s 2004 squad, the point guard on that team is meant to be a close physical approximation of the real point guard from that time in that year.  But it isn’t Chris Paul! Continue reading »

Tattoos and Copyrights: Inseparable from the Individual or a ‘Borrowed’ Image?

By Ashley Webb *

In the newest wave of intellectual property suits, one Hollywood studio is being sued for violating a tattoo copyright.  In “The Hangover Part II,” wimpy D.D.S. Stu wakes with a hangover that will last a lifetime: a huge tribal symbol tattooed to his left cheek, identical to the Maori-themed tattoo world-champion boxer Mike Tyson dons.

Mike TysonWhile millions of fans found humor (and irony) in the Tyson-inspired tattoo on Stu’s face, Mr. S. Victor Whitmill is not laughing.  A tattoo artist from small-town Missouri, Whitmill claims to own the copyrights to Mike Tyson’s tattoo, and therefore the exclusive right to create derivative works as well as the right to public display of the tattoo.  In his suit against Warner Bros. for appropriating the copyrighted “Tribal Tattoo” onto Ed Helms’ character, Whitmill claims, “this case is not about Mike Tyson, Mike Tyson’s likeness, or Mike Tyson’s right to use or control his identity.”  Rather, his complaint states it is about the copying of the tattoo onto someone else, and the failure to obtain permission to reproduce a derivative work for use throughout the film and promotional materials.  So far, a U.S. District Court Judge has denied Whitmill’s request for an injunction to prevent the opening of the film. Continue reading »

Costco Wholesale Corp. v. Omega S.A.: The Beginning of Gray Market Confusion and the End of First Sale Doctrine Protection for Retailers and Consumers

By Greer Benge *

Costco Wholesale trademarkOn December 13, 2010, the Supreme Court issued its decision in its de novo review of the Copyright Act’s impact on foreign-made goods and the first sale doctrine in Costco Wholesale Corp. v. Omega S.A. [hereinafter Costco v. Omega]. With Elena Kagan recusing herself, the Court’s 4-4 decision preserved the Ninth Circuit’s decision in favor of Omega.  Due to the rare split, no precedential value attached to the Court’s ruling, leaving in place the rejection of the first sale doctrine within the Ninth Circuit for foreign manufactured goods without affecting the interpretations of the doctrine in other circuits.  So, if you find yourself in California in the near future, you may want to hold off on purchasing that discounted digital camera from a price-savings club.  What appears to be an innocuous purchase may well be in contravention of the Ninth Circuit’s interpretation of the so-called “gray market:” if the camera has been manufactured in a foreign jurisdiction, it may potentially violate copyright infringement statutes designed to prevent the alienability of goods in secondary markets.

“Gray-market” goods are authentic products under a brand name protected by a trademark or copyright.  Typically, these products are manufactured abroad, then purchased and imported into the United States by third parties, bypassing authorized U.S. distribution channels.  As a result, retailers are able to offer gray-market goods to consumers at a discount due to the international discrepancies in the manufacturers’ pricing systems. Continue reading »

3-Dimensional to 3-Disruptive

By Dana Mullen *

The Penrose triangleMost people can grasp the concept that scanning a copyright protected drawing to make copies is a clear violation of copyright law.  Consider, on the other hand, a scenario made possible by the technology of 3D printing, an additive process which deposits material layer by layer until a three dimensional model is formed.  The Penrose triangle originated as a two dimensional drawing, creating the illusion of a three dimensional object.  However, it is an impossible object from which no true three dimensional replica can be formed.

Nonetheless, Netherlands-based designer Ulrich Schwanitz recently was successful in printing a three dimensional model of the illusion.  Schwanitz did not share his design secret but, rather, offered the “impossible triangle” for sale through the fabrication company Shapeways for $70 each.  Within weeks, 3D modeler Arture Tchoukanov had recreated the shape and uploaded instructions to the website Thingiverse.  Schwanitz demanded that the instructions infringed on his copyright and should be taken down.  But what exactly could Schwanitz assert copyright in: the design file, the image, or even the printed structure?  Could artists who used the triangle in previous pieces have a claim against Schwanitz?  The answers may depend on how U.S. copyright law defines limitations on exclusive rights and the applicability of the fair use doctrine, which includes factors such as the purpose and character of use, the nature of the copyrighted work, the effect of use upon market value, etc. Continue reading »

Up in the Air: Amazon Launches Cloud Player without Licenses

By Lisa Peterson *

amazon cloud driveThe story of David and Goliath is a well-known, time-honored tale.  But what about the story of Goliath versus Goliath?  This is exactly the type of legal battle brewing between Amazon.com and the “Big 4” music labels – Universal Music Group, Sony Music Entertainment, Warner Music Group, and EMI.

In March of this year, Amazon sent vibrations across the digital music world when it launched its Amazon Cloud Drive service – without having first obtained music licenses.  The Big 4, believing Amazon is illegally retransmitting copyrighted content without their permission, are incensed; Amazon, however, does not believe licenses are necessary to maintain its Cloud service and so it proceeded without them.  Amazon Cloud Drive is akin to a personalized online “locker” which allows users to upload their files, namely digital music, to the Cloud on Amazon’s website.  The user is then able to remotely access any file in the Cloud from other computers or devices, including Android phones and the iPad.  The main draw of Amazon Cloud is that it enables users to listen to their music wherever they go – without lugging around an external hard drive, or purchasing duplicate music files. Continue reading »

Mardi Gras “Indian” Suits: Fit for Copyright Protection?

By Rachel Waters *

Mardi Gras Indian“Look at my King all dressed in red.  Iko, Iko, unday.”  So goes a chant familiar to New Orleanians acquainted with the city’s tradition of Mardi Gras “Indians.”  To outsiders, Mardi Gras is often associated with debauchery and an air of lawlessness.  Mardi Gras Indians, however, are part of the holiday’s deep, surprisingly family-friendly, cultural foundation.

Recognized for their intricate costumes of feathers, beads, and other decorations, “Indians” often spend the entire year crafting their designs.  Each handmade “suit,” as they are called by locals, can cost thousands of dollars to make.  Although these Indians are considered a New Orleans treasure, they are not compensated or financially supported by the city – and they do not expect to be. On the other hand, the photographers who capture, and sell, rare sightings of these New Orleans cultural icons profit from what the Indians view as a relatively small effort. Continue reading »

Can YouTube’s Copyright School Save it from New Copyright Laws?

By: Jon Gasior *

Viacom vs. YouTubeWe have all been there, heard our friends talk about the latest YouTube hit, found the nearest computer only to find that video had been removed.  The accessibility of YouTube has made it an internet phenomenon.  Users can upload content with anything from videos of cats to television clips or anything in the middle.  However, this accessibility has also caused YouTube a great deal of trouble.  With over 20 hours of video uploaded to the site each minute, it is nearly impossible for YouTube to ensure that all of the material uploaded complies with U.S. copyright laws.  In the past, YouTube would simply ban a user after three copyright protected uploads, but that has since changed.  YouTube users are now required to attend YouTube Copyright School.  Copyright school was not instituted by YouTube simply because Google (who owns YouTube) executives were taking a proactive approach, not just to protect those who may suffer in lost royalties from illegal uploads, but to protect themselves. Continue reading »

Staggering Damages in LimeWire Case Translate “Peer-to-Peer” to “Fear-to-Peer”

By Matthew McClellan *

limes being squeezedRecently, another digital music storehouse, LimeWire, reached an agreement to shell out a large sum of money in the amount of $105 million after being found liable for copyright infringement.  The popular online file sharing service, as of 2009, had nearly 50 million subscribers who were able to exchange, trade, and share various content in their libraries, including music and movies, via LimeWire’s peer-to-peer network (p-2-p).  Although some content exchanged may have been works in the public domain, others were copyrighted works traded without permission from copyright holders, something that major record labels and music trade group R.I.A.A. (the Recording Industry Association of America) were not pleased about.  The R.I.A.A., composed of music industry executives and recording artists, seeks to support and promote “the creative and financial vitality of the major music companies.”  Therefore, in carrying out these objectives, the R.I.A.A. has been on the frontlines with record labels in their fight against piracy, taking on companies such as LimeWire. Continue reading »