This might be an interesting example for moral rights in the French droit d´auteur system. Even if the band has been paid by the UMP via the author´s collective SACEM, they might still disagree with being associated with a conservative political party.
http://www.guardian.co.uk/music/2009/feb/24/nicolas-sarkozy-party-compensates-mgmt
Tuesday, February 24, 2009
Tuesday, February 17, 2009
Trade Dress/Trade Secrets in Restaurants - NYC lawsuit
http://www.nytimes.com/2007/06/27/nyregion/27pearl.html?pagewanted=2&_r=1&ref=dining
I confess I haven't checked to see how it came out, but this article about a lawsuit wherein a restaurant owner charged a former employee-turned-competitor with copying her restaurant’s concept (and a key dish) ties into the discussion in today's class.
I confess I haven't checked to see how it came out, but this article about a lawsuit wherein a restaurant owner charged a former employee-turned-competitor with copying her restaurant’s concept (and a key dish) ties into the discussion in today's class.
Thursday, February 12, 2009
Remix Culture
"Artists have gotten no more money, businesses have not gotten more profit, and our kids have been turned into criminals."
This quotation is sums up the core of Lessig's problem with US Copyright law in its current form. The link leads to a review of his latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. A relevant example of the disconnect between the goals and outcomes of copyright law can be found in the experience of Stephanie Lenz. In 2007, Universal Records sued her for uploading a video to YouTube of her toddler dancing to a Prince song in the background. Mr. Lessig points out that it is inconceivable that people would use this YouTube video in lieu of purchasing a Prince album.
While a good point, it misses an important issue - copyright is not just about money, but about controlling one's own artistic creation. Perhaps Prince has a deep-seated aversion to toddlers and opposes the use of his music in such a fashion. While that may sound silly to most, it is Prince's song and Prince should control how the song is broadcast. Anyways, a thoughtful book by a thoughtful man.
This quotation is sums up the core of Lessig's problem with US Copyright law in its current form. The link leads to a review of his latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. A relevant example of the disconnect between the goals and outcomes of copyright law can be found in the experience of Stephanie Lenz. In 2007, Universal Records sued her for uploading a video to YouTube of her toddler dancing to a Prince song in the background. Mr. Lessig points out that it is inconceivable that people would use this YouTube video in lieu of purchasing a Prince album.
While a good point, it misses an important issue - copyright is not just about money, but about controlling one's own artistic creation. Perhaps Prince has a deep-seated aversion to toddlers and opposes the use of his music in such a fashion. While that may sound silly to most, it is Prince's song and Prince should control how the song is broadcast. Anyways, a thoughtful book by a thoughtful man.
Wednesday, February 11, 2009
E-Book reader copyright issue
This from the WSJ: The text-to-speech (i.e. read aloud) experimental feature of Amazon's Kindle 2 bookreader is running into trouble with the Author's Guild (of Google Books copyright case fame). Why? The read-aloud feature is argued to be an audio right distinct from the literary right under copyright law.
More here: http://online.wsj.com/article/SB123419309890963869.html
-Ben
More here: http://online.wsj.com/article/SB123419309890963869.html
-Ben
Tuesday, February 10, 2009
Monday, February 9, 2009
Is a car in a movie copyrightable subject matter?
For Herbie the Love Bug, the answer is yes! For “Eleanor” the Ford Mustang from Gone in 60 Seconds, maybe....
The 9th Circuit recently discussed copyright protection for characters in Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008). In this case, the owner of rights to the original 1974 film filed suit against famed Mustang manufacturer, Caroll Shelby, for merchandising activities resulting from Disney’s 2000 remake with Nicolas Cage and a pre-Brangelina Jolie.
The “original Eleanor” was a 1971 Fastback Ford Mustang, while “remake Eleanor” appeared as a 1967 Shelby GT-500. While the primary issue before the was whether the licensing agreement for the remake included merchandising rights, the court was presented with a secondary question of whether or not a car is a copyrightable character.
Applying the test of whether the character is the story being told, the Halicki court suggested copyright protection may be available for Eleanor. In particular, the court noted that in both the 1974 and 2000 remakes, the main character referred to his routine difficulties in stealing Eleanor the Mustang. Furthermore, the court highlighted the similarities of Eleanor to copyrightable comic book characters, where features are “consistent, and widely identifiable”. Speaking more to Eleanor’s penchant for avoiding theft, cosmetic differences between the two automotive models appeared to be of less consequence. The court remanded to the district court, emphasizing examination of “physical and conceptual qualities [and]… unique elements of expression”.
In summary, Herbie the Love Bug is the story being told and certainly copyrightables, while Eleanor may just barely qualify.
The Unfortunate Fate of Copyright Blogs, and What That Tells Us About the State of Copyright Law
A couple of months ago Keith Henning, a prominent copyright blogger, (http://copywrite.org/2008/10/14/blog-ending/) recently quit blogging. This comes close on the heels of what was probably the most prominent copyright blogger, Bill Patry, also quitting his blog (http://williampatry.blogspot.com/2008/08/end-of-blog.html). Bill is lead copyright counsel for Google, and his ideas on the field of copyright reflected the progressive stance that is part of Google's business culture.
Both of these bloggers cited similar reasons for ceasing their blogging activities. These included the benign aspects of limited time and communication from weirdoes, and the more troubling aspect of the overall "depressing" state of copyright law. The trends in copyright law, as both bloggers attest, seem to be almost universally negative. We discussed the influence of major corporations, namely Disney, on the Sonny Bono Copyright Term Extension Act in class. And if the opinions of these bloggers are to be believed, that influence is ubiquitous in copyright legal reforms. Mr. Henning cited the current example of the Pro-IP Bill, saying that "there is nothing in [it] to benefit actual people or even creators, only things to put the screws to anyone unlucky enough to get to in the way of a record label or large movie house." Based on the limited information that I have and my natural cynicism, I'm inclined to believe him.
The theme of corporate influence over copyright law is reinforced by Henning's fourth reason for quitting, which is how incredibly depressing it is to interact with victims of the RIAA's litigation campaign that contact him. The RIAA suits have been riddled with legal, factual and constitutional errors, and yet they have managed to extract over $300 million from thousands of defendants, many of whom are innocent, while only conducting a few trials that have actually made it to court. It is difficult to conceive of how such a Machiavellian scheme could succeed without the tremendous resources and influence of a multi-billion dollar industry.
Copyright law is fun. It has probably been the most interesting field of law that I have studies thus far, and my interest in it extends beyond classroom. But I share the opinions of the recently retired copyright bloggers that it is being destroyed by the influence of wealthy organizations. Perhaps that is part of what makes it so interesting, to see what the dirty old RIAA is up to next. It helps to have a definite villain in any good story, and the RIAA assumes that role in an almost vaudevillian fashion.
Despite my dismay with the direction of copyright law, I will continue to monitor it in the future, and hopefully will get to practice it someday. I will certainly be watching the first web-based simulcast of Harvard Professor Charles Nesson's oral argument against the RIAA. It is currently scheduled to be broadcast on Feb. 24 on Harvard's Law School website. The RIAA has opposed the broadcast, to which amici such as the AP, Hearst, PBS, NPR and the EFF have responded, so the date and time have not yet been finally determined. But they will soon and the information will be on the internet if you are interested. I'll bring the popcorn.
Both of these bloggers cited similar reasons for ceasing their blogging activities. These included the benign aspects of limited time and communication from weirdoes, and the more troubling aspect of the overall "depressing" state of copyright law. The trends in copyright law, as both bloggers attest, seem to be almost universally negative. We discussed the influence of major corporations, namely Disney, on the Sonny Bono Copyright Term Extension Act in class. And if the opinions of these bloggers are to be believed, that influence is ubiquitous in copyright legal reforms. Mr. Henning cited the current example of the Pro-IP Bill, saying that "there is nothing in [it] to benefit actual people or even creators, only things to put the screws to anyone unlucky enough to get to in the way of a record label or large movie house." Based on the limited information that I have and my natural cynicism, I'm inclined to believe him.
The theme of corporate influence over copyright law is reinforced by Henning's fourth reason for quitting, which is how incredibly depressing it is to interact with victims of the RIAA's litigation campaign that contact him. The RIAA suits have been riddled with legal, factual and constitutional errors, and yet they have managed to extract over $300 million from thousands of defendants, many of whom are innocent, while only conducting a few trials that have actually made it to court. It is difficult to conceive of how such a Machiavellian scheme could succeed without the tremendous resources and influence of a multi-billion dollar industry.
Copyright law is fun. It has probably been the most interesting field of law that I have studies thus far, and my interest in it extends beyond classroom. But I share the opinions of the recently retired copyright bloggers that it is being destroyed by the influence of wealthy organizations. Perhaps that is part of what makes it so interesting, to see what the dirty old RIAA is up to next. It helps to have a definite villain in any good story, and the RIAA assumes that role in an almost vaudevillian fashion.
Despite my dismay with the direction of copyright law, I will continue to monitor it in the future, and hopefully will get to practice it someday. I will certainly be watching the first web-based simulcast of Harvard Professor Charles Nesson's oral argument against the RIAA. It is currently scheduled to be broadcast on Feb. 24 on Harvard's Law School website. The RIAA has opposed the broadcast, to which amici such as the AP, Hearst, PBS, NPR and the EFF have responded, so the date and time have not yet been finally determined. But they will soon and the information will be on the internet if you are interested. I'll bring the popcorn.
Sunday, February 8, 2009
Personality Rights in Washington State
For those interested in thinking about the interactions between state property law and federal copyright law, I provide below some background on the 1998 Washington Personality Rights Act, which is taken from the 2008 House Bill Report for HB 2727 (which clarified some aspects of the original act). If you are interested in reading the statutes, they can be found at Chapter 63.60 RCW.
In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.
The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.
Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.
There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.
In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.
The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.
Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.
There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.
Saturday, February 7, 2009
Cablevision DVR Case
Recently, the U.S. Court of Appeals in N.Y. issued a decision lifting an injunction that prohibited Cablevision from offering its customers space on its servers to store television for later viewing. The Supreme Court is considering whether to grant certiori in the case and, in January, the asked the Obama administration if it wanted to weigh in on the matter. See the article here.
I thought this was interesting as we spoke briefly in class on the matter of TiVo and the time-shifting aspects of recording programs (a la Sony). I think this case also shows some clear boundaries outlining some prominent stakeholders in a copyright case. Movie studios and film networks are teaming up to argue that the Supreme Court should reverse the COA decision. On the other side, Cable companies are hoping that the decision will stand as it would save them millions by not having to buy and install DVR boxes in individual homes.
"Copyright being used to stifle creativity, rather than promote it"
The University of the South owns the copyright of Tennessee Williams’ plays such as “A Street Car Named Desire.” The university is threatening to sue a one-man act entitled “Blanche Survives Katrina in a FEMA Trailer Named Desire.” While the university alleges that this one-man act is an infringement “on the university’s valuable intellectual property rights,” the author of this article maintains that the act is a transformative use. In addition, the author of this article emphasizes that the act’s author and actor has a strong fair use defense since the act is a “parody of both current events and the original play.” The university, on the other hand, maintains that the fair use defense will not work since the parody is only directed at current events.
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Thursday, February 5, 2009
Lawrence Lessig on NPR
Professor Lessig will be a guest on NPR on Friday, 02/06/09 at 1 pm. He will be discussing his recent article in the Wall Street Journal and his views on the present state of copyright law. The local NPR station where he will be a guest is KUOW 94.9 FM
Wednesday, February 4, 2009
A Love Affair With the Cell Phone Novel
I was browsing through an old New Yorker and I found a story on the advent and rise of the cell phone novel in Japan, by Dana Goodyear.
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
Obama Hope Poster a Copyright Infringement...or Fair Use?
We've seen the red, white, and blue image of Barack Obama, with the word "HOPE" EVERYWHERE in the past year. It's been used on posters, t-shirts, buttons, even cupcakes. This iconic image probably now rivals those of Che Guevara and Mao Zedong.
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
iTunes, DRMs and the first sale docrine (?)
I am wondering if anyone has any thoughts on something I've been thinking about. In class yesterday, Professor Laster, in his summary, said that the first sale doctrine exhausts the copyright holder's right to control the distribution. As I understand it, that means, for example, that if I buy a music CD, I can lend it to my friend. I know Apple recently announced it would stop selling music encumbered by digital rights management restrictions - seems to me as a result of consumer power - but are DRM encumbrances legal? Was apple allowed to do this in the first place? Ostensibly, when I buy a song on iTunes, I'm not just buying a license to use the song, am I? Or maybe I am? I thought I was buying a copy of the song. Does it have to do with a difference in medium, ie the tangible medium problem? Am I missing something? A statute? At any rate, it seems like in this case the market took care of the situation and Apple is now getting rid of its DRMs. Victory.
Tuesday, February 3, 2009
Monday, February 2, 2009
14th Annual Intellectual Property Institute
On March 12, 2009, the WSBA is holding a seminar dealing with a variety of intellectual property issues that we have covered both last quarter and this quarter. Some of the segments inlcude a session on the DMCA and a year in review of copyright cases, among other topics in Patent law, Copyrights, and Trademarks. Professor O'Connor will be one of the lecturers as well. The cost of the seminar is $270.00 and it counts for 6.O CLE credits (for anyone who is already admitted to practice in Washington and needs CLE credits). The only down side is that it appears that the seminar meets during our regular class time, so anyone who attends will have to miss class (unless you just attend certain sessions and not the whole thing). More information is available at the WSBA website under the "CLE" link.
Thursday, January 29, 2009
Parody, or being lazy?
Someone in class commented the other day that under the fair use doctrine, in the context of parody, an artist can simply be lazy, copy the work of someone else, and change it a little to call it a parody. I found this article in the Wall Street Journal today that speaks directly to that. The article describes two works of one man. The man had created the works by downloading someone else's photographs, printing them directly onto his canvases, then adding to or detracting from them. In one case, a court found that the work was a parody, and had been transformative enough to constitute fair use. In the other case, it was merely copying, and was infringement because there was no parody involved. His work directly implicates the distinction between parody, or critique of art, and simple laziness.
It also suggests that an artists view of what is "transformative" might be different from a court's view of what is "transformative." The copying artist's claim is that in the art world, if there is both a change in medium, and a "re-presentation" of the work, then it is transformative. Some of this artist's work makes one question whether he was, in good faith, adhering to these claimed beliefs of what is transformative, but it nonetheless raises the issue that an artist may be unaware that s/he is infringing because the definition of "transformative" can easily be lost in translation from law to art.
Here is a link to the article: http://online.wsj.com/article/SB123319795753727521.html
It also suggests that an artists view of what is "transformative" might be different from a court's view of what is "transformative." The copying artist's claim is that in the art world, if there is both a change in medium, and a "re-presentation" of the work, then it is transformative. Some of this artist's work makes one question whether he was, in good faith, adhering to these claimed beliefs of what is transformative, but it nonetheless raises the issue that an artist may be unaware that s/he is infringing because the definition of "transformative" can easily be lost in translation from law to art.
Here is a link to the article: http://online.wsj.com/article/SB123319795753727521.html
Is it possible to contract around the safe harbor provisions of the DMCA?
The RIAA is shifting its approach from prosecuting individual users who pirate copyrighted material, to working with internet service providers to disconnect "persistent pirates." Here is a link to the NY Times article: http://www.nytimes.com/2009/01/30/technology/30digital.html?_r=1&ref=technology. Apparently, the RIAA decided to cease its strategy of targeting individual users because it was bad for its image. However, the effectiveness of its new strategy may be worse. The ability of an OSP to disconnect its users is a powerful tool. Denial of internet access is a greater deterrent than the mere threat of RIAA prosecution. Not only that, but if the RIAA works with OSPs under contracts, it can get more monetary damages for breach of contract than it could get from individual users for infringement. Does the approach allow inroads on the OSP safe harbors of the DMCA by creating liability contractually? Does it indicate the beginning of the uniting of RIAA and OSP interests?
Copyright & Work for Hire in the Seattle Glass Art World
More copyright on a local level - the suit was settled, but when glass artist Dale Chihuly sued former employee Bryan Rubino for copying his (Chihuly's) works, the nature of work for hire came into the picture as well as the idea/expression dichotomy:
http://www.thestranger.com/seattle/Content?oid=30734
http://seattlepi.nwsource.com/visualart/266884_dalelawsuit17.html
http://www.nytimes.com/2006/06/01/us/01glass.html?pagewanted=print
http://www.thestranger.com/seattle/Content?oid=30734
http://seattlepi.nwsource.com/visualart/266884_dalelawsuit17.html
http://www.nytimes.com/2006/06/01/us/01glass.html?pagewanted=print
"Color This Area of the Law Gray"
The Wall Street Journal posted an article today discussing the trend in copyright law to find artwork, such as the art of Jeff Koons, transformative when the work can be characterized as a comment on previous works. The article draws attention to a pending lawsuit concerning whether Richard Prince had transformed Patrick Cariou's photography when Prince scanned Cariou's pictures, printed them on a canvas, and then defaced the pictures. The article notes that judicial characterization of whether art is transformative is a "gray" area in copyright law that serves an important function - mainly flexibility.
Tuesday, January 27, 2009
Harry Potter Fair Use Case
The Vanderbilt Journal of Entertainment and Technology Law has an interesting article summarizing the recent case of Warner Brothers/J.K. Rowling v. RDR Books, in which J.K. Rowling sued RDR Books for copyright infringement of her Harry Potter novels as well as two accompanying encyclopedias that she had published - RDR had published a book written by a young man that catalogued the Harry Potter lexicon. Here's a link describing the court's decision: The case is a nice example of how the court determines copyright infringement, especially with respect to the 4 fair-use factors.
As to the first factor (purpose and character of use), the court found that the work was not particularly transformative when compared to the other encyclopedic works produced by Rowling. Also, the work was for profit.
The second factor (amount and substantiality of use) weighed in favor of Rowling. The book contained far too much verbatim copying from the book, even when such copying would not have been necessary. Thus, the author appropriated more than was necessary to create the work.
The third factor (nature of the copyrighted work) also weighed against a finding of fair use because the Harry Potter franchise is entirely fictional.
Finally, the fourth factor (market harm) also weighed against a finding of a fair use. Although the lexicon encyclopedia would not likely compete with the Harry Potter novels, it would likely harm sales of Rowlings other encyclopedic works.
Thursday, January 22, 2009
Parody as Fair Use in Europe
The copyright law of the members of the European Union has been harmonized by the Directive 2001/29/EC of 22 May 2001 on certain aspects of copyright and related rights in the information society. The members states are free to allow parodies of copyrighted work:
“Article 5
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 [Reproduction right] and 3 [Right of communication to the public of works and right of making available to the public other subject-matter] in the following cases:
(...)
(k) use for the purpose of caricature, parody or pastiche;
(...)”
The German Copyright Statute (Urheberrechtsgesetz) does not adress parodies directly. It does, however, recognize a right to ''free use'' (§ 24, Freie Benutzung). ''Free use'' can be described as a thin line between the exclusive right of the author to ''editings and transfigurations'' (§ 23, Bearbeitungen und Umgestaltungen) and the moral right of the author to be protected against “disfiguration'' (§ 14, Entstellung des Werkes).
The German Supreme Court held that a parody is ''free use'', when the elements of an existing work are picked up and reassembled in a different context in order to let them look weird and satirical. The court created for this purpose the word ''anti-thematically'' (antithematisch). The court had to deal with a modified image of the eagle in the German parliament. Guess which eagle is the original one!
An important exception exists with respect to pieces of music! The copyright statute provides a ''rigid music protection'' (§ 24(2)). The reconizable melodie of a song cannot be used freely. Thus, without the consent of the auhtor a parody of a song is barred!
This is, however, the law in Germany. The underlying European Directive enables other member states to deal with parodies in different ways.
Parody and caricature: right to one's own image?
Discussion in class today about parody and caricature reminded me of the Sarkozy voodoo doll fiasco last October and the relationship between parody, caricature, and the right to one’s own image. The French president Sarkozy sued K+B Publishers, the makers of the doll, (which was an image of Sarkozy and came with pins to stick into it, and a list of notoriously rude phrases Sarkozy has uttered over the years) alleging that the doll infringes on his exclusive right to his image. French courts didn’t go for it though. I had a laugh. I wonder if he’s considering suing the Canadian comedy duo who called Sarah Palin and pretended to be him for a whole six minutes. Here is a link to a voodoo doll lawsuit article:
http://www.iht.com/articles/2008/10/30/europe/france.php
http://www.iht.com/articles/2008/10/30/europe/france.php
Wednesday, January 21, 2009
Next Few Classes & Assignments
Thursday, Jan. 22 -
Continue Discussion of Fair Use..
Readings are only from Text, pp 522-569; and 609 - 615
Tuesday, Jan 27
The DMCA; Indirect Liability; ISP Safe Harbors
Text 580 - 609
Thursday, Jan 29
Initial Ownership; Formalities
Text 405-411; 446-474
Tuesday, Feb 3
Duration...Scope; Federal Pre-Emption; Implications for Sales & Licensing
Text 465-474
Thursday, Feb 5
NO CLASS; USE TO PREPARE FINAL EXERCISE
Monday, Feb 9
EXERCISES DUE TO ACADEMIC SERVICES BY END OF DAY
Tuesday, Feb 10
Regular Class; Start of Trademark Section with Professor Mike Atkins
Experts will be the same as posted below....
Continue Discussion of Fair Use..
Readings are only from Text, pp 522-569; and 609 - 615
Tuesday, Jan 27
The DMCA; Indirect Liability; ISP Safe Harbors
Text 580 - 609
Thursday, Jan 29
Initial Ownership; Formalities
Text 405-411; 446-474
Tuesday, Feb 3
Duration...Scope; Federal Pre-Emption; Implications for Sales & Licensing
Text 465-474
Thursday, Feb 5
NO CLASS; USE TO PREPARE FINAL EXERCISE
Monday, Feb 9
EXERCISES DUE TO ACADEMIC SERVICES BY END OF DAY
Tuesday, Feb 10
Regular Class; Start of Trademark Section with Professor Mike Atkins
Experts will be the same as posted below....
Copyright Section Final Excercise
University of Washington School of Law
E567 – SURVEY OF INTELLECTUAL PROPERTY
Winter 2009
Copyright Section
Professor Steve Davis
FINAL EXERCISE
Instructions:
Answer ONLY ONE of the two optional questions below. The answers must be more than five and less than ten double-spaced pages, including footnotes. Your answer is due at Academic Services by the end of day on Monday, February 9, 2009.
You may use some sources outside of the readings/cases on the syllabus, but the questions can be answered without any additional sources; rely primarily on the readings, class discussions, and more important, your understanding of the world of copyright so far.
In either question, you should not only spot some of the critical issues and discuss their legal implications, but you should take a position – of your own choosing – as to the advice you wish to give. You can do this by choosing a stakeholder, either a potential plaintiff or defendant, or if you want to think more broadly, as an executive in a related business, or a public relations firm asked to sway public opinion on the issue, or a lobbyist considering new legislation on the topic, or even as an individual artist or creator. Put yourself in the shoes of someone for whom the outcome of the scenario is vital to their interests, and explain what they should do, what they should be concerned about, what underlying philosophies or doctrines may affect your thinking, and how they might best proceed. Have fun with it.
SCENARIO I
In late 2004, Google set out to build the cyberspace version of the “Library of Alexandria” by collecting and housing the world’s knowledge for future generations. Pursuant to Google’s corporate mission “to organize the world’s information and make it universally accessible and useful,” it started working with many of the leading lending libraries in the world – at Harvard, Stanford, Oxford, New York City and others – to scan all or portion of their collections and make those texts searchable only on Google. For works that are in the public domain, users will be able to access the entire book. For books still under copyright, users would likely receive only parts of the text, although the plans for copyrighted books are still not clear. Google will spend hundreds of millions of dollars on this project and claims the goal is to help users discover books and provide information about where to obtain a complete copy. But Google will also sell advertising related to the pages delivered in Google Books, and undoubtedly integrate these pages into other profitable Google products and services in the future. Google was surprised when many publishers and authors, including the Association of American University Presses, loudly criticized Google for these plans, and several lawsuits have been filed.
There has been much discussion of this case, other similar projects have been launched, and some settlements have been made. Don’t focus on those outcomes as much as think about the stakeholders surrounding Google Books and advise about the potential issues and approaches – legally, technologically, politically – for a resolution.
SCENARIO II
Two twenty-something entrepreneurs, Rock and Roll, both recently left a failing band in order to make their fortune. They now plan to launch a new internet site called Mix-N-Match (by Rock-N-Roll). The site incorporates great tools to enable its users to download song – in whole or in parts – from any source the user chooses, then use their internet mixing board tool to create new mash-ups which can then be stored, uploaded, or played. Both Rock and Roll strongly believe that the internet should promote a “free culture,” where information should be free to use and share and exploit, and have not really considered whether their site may create legal problems or face other challenges in the marketplace. So far, they have not cut any deals with any music publishers, nor have they done any marketing or promotions on the site or offline. Their tool is probably the best online mixing board technology around, but so far contains no other special tools or features regarding managing content. They really want to launch Mix-N-Match soon, and really, really want to get rich, but their venture capital investors have suggested they slow down and consider potential issues related to this effort.
E567 – SURVEY OF INTELLECTUAL PROPERTY
Winter 2009
Copyright Section
Professor Steve Davis
FINAL EXERCISE
Instructions:
Answer ONLY ONE of the two optional questions below. The answers must be more than five and less than ten double-spaced pages, including footnotes. Your answer is due at Academic Services by the end of day on Monday, February 9, 2009.
You may use some sources outside of the readings/cases on the syllabus, but the questions can be answered without any additional sources; rely primarily on the readings, class discussions, and more important, your understanding of the world of copyright so far.
In either question, you should not only spot some of the critical issues and discuss their legal implications, but you should take a position – of your own choosing – as to the advice you wish to give. You can do this by choosing a stakeholder, either a potential plaintiff or defendant, or if you want to think more broadly, as an executive in a related business, or a public relations firm asked to sway public opinion on the issue, or a lobbyist considering new legislation on the topic, or even as an individual artist or creator. Put yourself in the shoes of someone for whom the outcome of the scenario is vital to their interests, and explain what they should do, what they should be concerned about, what underlying philosophies or doctrines may affect your thinking, and how they might best proceed. Have fun with it.
SCENARIO I
In late 2004, Google set out to build the cyberspace version of the “Library of Alexandria” by collecting and housing the world’s knowledge for future generations. Pursuant to Google’s corporate mission “to organize the world’s information and make it universally accessible and useful,” it started working with many of the leading lending libraries in the world – at Harvard, Stanford, Oxford, New York City and others – to scan all or portion of their collections and make those texts searchable only on Google. For works that are in the public domain, users will be able to access the entire book. For books still under copyright, users would likely receive only parts of the text, although the plans for copyrighted books are still not clear. Google will spend hundreds of millions of dollars on this project and claims the goal is to help users discover books and provide information about where to obtain a complete copy. But Google will also sell advertising related to the pages delivered in Google Books, and undoubtedly integrate these pages into other profitable Google products and services in the future. Google was surprised when many publishers and authors, including the Association of American University Presses, loudly criticized Google for these plans, and several lawsuits have been filed.
There has been much discussion of this case, other similar projects have been launched, and some settlements have been made. Don’t focus on those outcomes as much as think about the stakeholders surrounding Google Books and advise about the potential issues and approaches – legally, technologically, politically – for a resolution.
SCENARIO II
Two twenty-something entrepreneurs, Rock and Roll, both recently left a failing band in order to make their fortune. They now plan to launch a new internet site called Mix-N-Match (by Rock-N-Roll). The site incorporates great tools to enable its users to download song – in whole or in parts – from any source the user chooses, then use their internet mixing board tool to create new mash-ups which can then be stored, uploaded, or played. Both Rock and Roll strongly believe that the internet should promote a “free culture,” where information should be free to use and share and exploit, and have not really considered whether their site may create legal problems or face other challenges in the marketplace. So far, they have not cut any deals with any music publishers, nor have they done any marketing or promotions on the site or offline. Their tool is probably the best online mixing board technology around, but so far contains no other special tools or features regarding managing content. They really want to launch Mix-N-Match soon, and really, really want to get rich, but their venture capital investors have suggested they slow down and consider potential issues related to this effort.
The Google Settlement
Date: January 29, 2009
Title: THE GOOGLE SETTLEMENT – WHAT DOES IT MEAN FOR THE FUTURE
Location: Seattle University School of Law, Sullivan Hall, 901 12th Avenue, Seattle 98122 6:00pm
Description: In October of 2008, Google announced it had reached a settlement with authors and publishers in the class action lawsuits over its Google Book Search. With the settlement now being put into place, what will this mean for those that participate in the program and for those who do not? What will happen to competitors for Google Book Search and what impact will Google’s Book Registry have on the future of copyright law? Join our fantastic panel for a lively discussion as we delve into this evolving area of copyright law.
Flyer (PDF): CSUSA NW 1 29 2009.pdf
Title: THE GOOGLE SETTLEMENT – WHAT DOES IT MEAN FOR THE FUTURE
Location: Seattle University School of Law, Sullivan Hall, 901 12th Avenue, Seattle 98122 6:00pm
Description: In October of 2008, Google announced it had reached a settlement with authors and publishers in the class action lawsuits over its Google Book Search. With the settlement now being put into place, what will this mean for those that participate in the program and for those who do not? What will happen to competitors for Google Book Search and what impact will Google’s Book Registry have on the future of copyright law? Join our fantastic panel for a lively discussion as we delve into this evolving area of copyright law.
Flyer (PDF): CSUSA NW 1 29 2009.pdf
Tuesday, January 20, 2009
Tort masquerading as Property?
On one level, Harper & Row is a straightforward IP case. The Nation clearly infringed the copyright of Gerald Ford's memoirs. The magazine claimed fair use as a defense, but how could the misappropriation of Time's exclusive license to pre-publish excerpts be considered fair? The Nation did not simply publish the factual fruit of a journalistic investigation, but rather excerpts of a creative work (even if a heavily fact-based one). A copyright regime that would allow such behavior hardly seems fair or equitable.
That said, Harper & Row reminds me more of another famous journalistic misappropriation case we read in relation to trade secret law, International News Service v. Associated Press. In INS, the AP earned its "scoops" through hard work and investigation, and INS snatched the fruits away for their own profit. The Nation did something similar to Time, except that Time earned its "scoop" by purchase rather than labor. It is not clear to me from reading the case whether The Nation was complicit in the theft of Ford's manuscript, or merely the fortuitous beneficiary who knew something unseemly was afoot. Either way, by analogy to the law of trade secrets that punishes both theft and knowing receipt of stolen information, The Nation misappropriated Time's license to publish excerpts. If Time sued The Nation for the tort of misappropriation, that case would be very much like International News Service. Both cases would involve a sort of intellectual property right that is neither trade secret nor copyright, but protected by a liability rule nonetheless.
But Time wasn't the plaintiff in this case. Harper & Row, the publisher of the memoirs and holder of their copyright, sued instead. The publisher was able to wield the federal statutory sword of copyright rather than the (by comparison) limp noodle that is the tort of misappropriation. In the end, does it matter? Instead of confronting duties and breaches as the plaintiff's claim, the court still had to confront duties and breaches to determine if the defendant could invoke an equitable defense. Given that the case of copyright infringement was not contested, and the fair use defense was the battleground in the courts, couldn't we say that misappropriation really was the basis of the case? If Time hadn't purchased the license, and if The Nation had simply found the manuscript laying on a table in a public place, would the fair use defense still fail? Can we discount the Supreme Court's discussion of commercial vs. nonprofit uses as dicta?
That said, Harper & Row reminds me more of another famous journalistic misappropriation case we read in relation to trade secret law, International News Service v. Associated Press. In INS, the AP earned its "scoops" through hard work and investigation, and INS snatched the fruits away for their own profit. The Nation did something similar to Time, except that Time earned its "scoop" by purchase rather than labor. It is not clear to me from reading the case whether The Nation was complicit in the theft of Ford's manuscript, or merely the fortuitous beneficiary who knew something unseemly was afoot. Either way, by analogy to the law of trade secrets that punishes both theft and knowing receipt of stolen information, The Nation misappropriated Time's license to publish excerpts. If Time sued The Nation for the tort of misappropriation, that case would be very much like International News Service. Both cases would involve a sort of intellectual property right that is neither trade secret nor copyright, but protected by a liability rule nonetheless.
But Time wasn't the plaintiff in this case. Harper & Row, the publisher of the memoirs and holder of their copyright, sued instead. The publisher was able to wield the federal statutory sword of copyright rather than the (by comparison) limp noodle that is the tort of misappropriation. In the end, does it matter? Instead of confronting duties and breaches as the plaintiff's claim, the court still had to confront duties and breaches to determine if the defendant could invoke an equitable defense. Given that the case of copyright infringement was not contested, and the fair use defense was the battleground in the courts, couldn't we say that misappropriation really was the basis of the case? If Time hadn't purchased the license, and if The Nation had simply found the manuscript laying on a table in a public place, would the fair use defense still fail? Can we discount the Supreme Court's discussion of commercial vs. nonprofit uses as dicta?
Monday, January 19, 2009
Another movie imitates a famous magazine cover in its poster case
Here is a link to two summaries, with photos, of a simliar case to Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D.N.Y. 1987).
In Leibovitz v. Paramount Pictures, Paramount promoted the 3rd Naked Gun movie by mimicing Leibovitz's very famous Vanuty Fair cover of a majestic pregnant Demi More with Leslie Nelson's head photoshopped on.
Unlike with the New Yorker Cover, the court found for Paramount as a fair use.
How to proof copyright infringment
The German rapper Bushido copied some elements from a Norwegian rock band and a French gothic band. The video below which is unfortunately in German shows how the infringment can be proofed. First, the two songs are compared in a music studio. In this example the conformity is 96 %. Then, more conventional, the songs are compared by an expert and the his use of a piano.
After lawsuits were filed Bushido already settled with the Norwegian band.
The video might be interesting even if your German skills are timeworn or were never existent.
http://www.spiegel.de/video/video-46845.html
After lawsuits were filed Bushido already settled with the Norwegian band.
The video might be interesting even if your German skills are timeworn or were never existent.
http://www.spiegel.de/video/video-46845.html
Wednesday, January 14, 2009
UPDATED EXPERTS ASSIGNMENTS
1/8 – Rebecca Penkala; Jika Gzibu-Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Cynthia Sharp, Katherine Herche
1/22 - Sheri Wardwell; Peter Morris; Liz Little; Jacob Phillips; Angela Wishaar
1/27 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott; Paula Simon
1/29 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li; Nicholas Hudson
2/3- Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely; Weng Lehong
2/5 – Guest Lecturer
Please advise if this is a problem or I missed you!!
Steve
1/8 – Rebecca Penkala; Jika Gzibu-Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Cynthia Sharp, Katherine Herche
1/22 - Sheri Wardwell; Peter Morris; Liz Little; Jacob Phillips; Angela Wishaar
1/27 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott; Paula Simon
1/29 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li; Nicholas Hudson
2/3- Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely; Weng Lehong
2/5 – Guest Lecturer
Please advise if this is a problem or I missed you!!
Steve
UPDATED EXPERTS ASSIGNMENTS
1/8 – Rebecca Penkala; Jika Gzibu-Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Cynthia Sharp, Katherine Herche
1/22 - Sheri Wardwell; Peter Morris; Liz Little; Jacob Phillips; Angela Wishaar
1/27 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott; Paula Simon
1/29 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li; Nicholas Hudson
2/3- Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely; Weng Lehong
2/5 – Guest Lecturer
Please advise if this is a problem or I missed you!!
Steve
1/8 – Rebecca Penkala; Jika Gzibu-Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Cynthia Sharp, Katherine Herche
1/22 - Sheri Wardwell; Peter Morris; Liz Little; Jacob Phillips; Angela Wishaar
1/27 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott; Paula Simon
1/29 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li; Nicholas Hudson
2/3- Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely; Weng Lehong
2/5 – Guest Lecturer
Please advise if this is a problem or I missed you!!
Steve
Sunday, January 11, 2009
EXPERT ASSIGNMENTS
EXPERTS ASSIGNMENTS
1/8 – Paula Simon; Rebecca Penkala; Jika Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Angela Wishaar; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Sheri Wardwell
1/22 - Cynthia Sharp; Peter Morris; Liz Little; Jacob Phillips
1/27 – Guest Lecturer – No Experts
1/29 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott
2/3 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li
2/5 - Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely
Please let me know if you want to change. We may need to move around the assignments toward the end IF the guest lecturers can't make it on the 27th....
Steve
1/8 – Paula Simon; Rebecca Penkala; Jika Knight; Sean Gamble
1/13 – Matthias Probst; Jessica Fritz; Angela Wishaar; Lauren Sancken
1/15 – Tyler Arnold; Yamini Menon; Brendon McNamara
1/20 - Le Tian; Allison Brown; Barna De; Sheri Wardwell
1/22 - Cynthia Sharp; Peter Morris; Liz Little; Jacob Phillips
1/27 – Guest Lecturer – No Experts
1/29 – Adam Andrews; Eri Yoshida; Ben Hellerstein; Will Pigott
2/3 - Stephanie Holmes; Miles Carter; Anna Penar; Hui Li
2/5 - Kevin Raudebaugh; Nathaniel Strauss; Laurence Blakely
Please let me know if you want to change. We may need to move around the assignments toward the end IF the guest lecturers can't make it on the 27th....
Steve
Ideas - Expression Dichotomy
Don't worry - some of these issues and cases are pretty tough to grasp. Clearly, it is an area that is not well-defined, and is highly contextual. But make sure you think about what Baker v. Selden was really about -- and why, and, of course, WHO CARES?
A little about me....
Steve Davis currently is a Senior Advisory for McKinsey & Co’s global Social Sector Office (www.mckinsey.com) focusing on global health, development and philanthropy projects.
He also is a Lecturer at the University of Washington School of Law in the Intellectual Property Program, and sits on the board of several profit and non-profit organizations.
He recently served as the Interim CEO of IDRI (Infectious Diseases Research Institute – www.idri.org), a Seattle-based non-profit organization focused on translational science for global health.
He is the former president and chief executive officer of Corbis, a global digital media company (www.corbis.com). Steve had senior roles at Corbis from 1993 until 2007.
Earlier, he practiced law with the firm of Preston Gates & Ellis in Seattle, specializing in intellectual property issues, and prior to that he held various positions in international refugee and human rights organizations.
He received his AB from Princeton University, his MA in Chinese studies from the University of Washington, and his JD from Columbia University School of Law, where he received the Faculty Prize in international law. He has also attended certificate programs at Beijing University and Stanford Business School.
Steve currently serves on the boards of PATH, Fred Hutchinson Cancer Research Center, IDRI, The Seattle Foundation, Global Partnerships, Intrepid Learning Solutions, Crucell and PlanetOut, and he is a member of the Council on Foreign Relations.
He previously chaired the Technology Alliance, NPower, United Way of King County, and the International Practice Section of the Washington State Bar, and he has served on the boards of the United Way International, Alliance for Education, Lambda Legal Defense & Education Fund, the Governor’s Competitiveness Council, and other organizations
He also is a Lecturer at the University of Washington School of Law in the Intellectual Property Program, and sits on the board of several profit and non-profit organizations.
He recently served as the Interim CEO of IDRI (Infectious Diseases Research Institute – www.idri.org), a Seattle-based non-profit organization focused on translational science for global health.
He is the former president and chief executive officer of Corbis, a global digital media company (www.corbis.com). Steve had senior roles at Corbis from 1993 until 2007.
Earlier, he practiced law with the firm of Preston Gates & Ellis in Seattle, specializing in intellectual property issues, and prior to that he held various positions in international refugee and human rights organizations.
He received his AB from Princeton University, his MA in Chinese studies from the University of Washington, and his JD from Columbia University School of Law, where he received the Faculty Prize in international law. He has also attended certificate programs at Beijing University and Stanford Business School.
Steve currently serves on the boards of PATH, Fred Hutchinson Cancer Research Center, IDRI, The Seattle Foundation, Global Partnerships, Intrepid Learning Solutions, Crucell and PlanetOut, and he is a member of the Council on Foreign Relations.
He previously chaired the Technology Alliance, NPower, United Way of King County, and the International Practice Section of the Washington State Bar, and he has served on the boards of the United Way International, Alliance for Education, Lambda Legal Defense & Education Fund, the Governor’s Competitiveness Council, and other organizations
Syllabus
SURVEY OF INTELLECTUAL PROPERTY E567
Winter 2009
Syllabus
Winter Quarter
Overview of Copyright Portion of IP Survey
Professor Steve Davis
steve@stevebdavis.com
206-335-9559
Learning Objectives:
Students will gain a basic understanding of the statutory and case law pertaining to copyright, and some of the broader issues involved in a legal practice engaged with copyright issues. The focus will primarily be on U.S. copyright law, but some international themes and regulations will be addressed. These topics will be examined from both theoretical and practical perspectives, particularly with a view of the development of copyright doctrine and legislation as a response to, and at times an important influence upon, the business models emerging from the burgeoning technology and entertainment industries. A consideration of the various stakeholders’ interests in the efficacy and impact of copyright law will serve as a key analytical framework.
This portion of the course will conclude with an exercise designed to give students an opportunity to apply copyright doctrine in a realistic business opportunity.
Expectations:
Each 90 minutes class will include some lecture and open discussion or exercises. Attendance is important in part because I will sometimes lecture on material not covered in the reading assignments. I will try to post all handouts or presentations will on the website or blog after class. If you are unable to attend class, please let me know, and make arrangements for another student to give you notes and handouts.
On the first day of class, I will pass around an “expert” sign-up sheet for most of the remaining classes. Each student must be an expert once. Up to five students may be experts on a given day. Experts will be responsible for particularly thorough preparation of that day’s assignment and ready to take the lead on responding to questions and participating in discussions. I encourage experts to collaborate with each other and to share the fruits of their labors with the rest of the class. Experts are welcome to meet with me individually or as a group in advance of their class day. (That will require some advance preparation and scheduling, obviously). Experts may exchange days with another student, but please notify me so that I can update my records.
The use of experts, however, does not relieve other students from being fully prepared to discuss the topics and readings on any given day.
We will also create a blog to be used both as a tool for communications about our topics, as well as an on-line forum for discussions between classes. Each student will be expected to contribute to the blog at least once during the quarter.
There is an abundance of literature and material related to the long and complex development of copyright law in the U.S. and abroad. The assigned readings below have been selected to make your reading manageable, albeit there are still some lengthy assignments. I will occasionally offer additional materials for you to read and consider.
Evaluation:
Your overall score in the copyright portion of the class will constitute 50% of you quarter grade.
As to that portion of the grade, each student must be an expert once and will be evaluated on their contributions in that capacity, which will constitute 25% of your final evaluation for the copyright section.
In addition, general class participation and engagement will constitute another 25%. This includes your contributions to the blog.
The final 50% will be judged on a copyright exercise that will be due on the Monday after the last day of the copyright section of the course, February 9. I will provide the assignment to you by mid-January. This shall be an individual exercise.
* * *
Required Text:
Merges, Menell & Lemley, Intellectual Property in the New Technological Age (Revised 4th ed. 2007) (Note that the following includes readings for the Revised 4th Edition.)
Other Resources:
Ginsburg & Dreyfuss, Intellectual Property Stories (Foundation Press 2005) (recommended but not required)
U.S. Copyright Office: http://www.copyright.gov (and links contained therein)
Online digest of internet-related copyright cases, compiled by Perkins Coie LLP: http://www.perkinscoie.com/casedigest/icd_results.cfm?keyword1=copyright&topic=Copyright (and links contained therein)
Kernochan Center Intellectual Property Program: http://www.law.columbia.edu/center_program/kernochan/IIPPResources
Schedule of Assignments: Assignments are subject to modest change.
1/6 Introduction: lecture on IP history & philosophy; structure of the Copyright Act of 1976; international copyright regimes; enforcement & remedies; Reading: Text 383- 392; 616-632.
1/8 What is copyrightable? 17 U.S.C. §102(a); Reading: Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884); Text 392 – 405; 436 – 446.
1/13 What is not copyrightable? the idea-expression dichotomy; merger of useful items with expression, 17 U.S.C. § 102(b); unlicensed derivative works, 17 U.S.C. § 103; Reading: Text 411 – 431; 500 – 510.
1/15 Exclusive rights of the copyright holder; 17 U.S.C. §§106, 106A; Proving Infringement; Reading: Text 474 – 500; 510 – 522.
1/20 Limitations on the Rights: Fair Use, 17 U.S.C. 107; Reading: Text 522 – 569; 609 – 615.
1/22 Fair Use. See readings from 1/20 and additional handouts.
1/27 How this Really Works in Practice? Outside Lecturer
1/29 The Digital Millennium Copyright Act; Indirect Liability; ISP Safe Harbors. 17 U.S.C. §1201, et seq., § 17 U.S.C. §512.; Handouts/Blog on DMCA today; Reading: Text: 580 – 609.
2/3 Locating initial ownership; formalities; implications for sales and licensing agreements; Reading: Text 446 – 474; 405 – 411.
2/5 Duration, restoration and termination; scope; implications for sales and licensing agreements; federal pre-emption, 17 U.S.C. §301; Reading: Text 465 – 474
Written answers to the copyright exercise are due to Academic Services on Monday, 2/9, by 1:00 p.m.
Overview of Trademark Portion of IP Survey
Professor Michael Atkins
matkins@grahamdunn.com(206) 340-9614
Winter 2009
Class will be taught in lecture and discussion formats based on the assigned readings from the casebook and supplement, and associated sections of the Lanham Act, 15 U.S.C. § 1051, et seq.)
Reading references below to “Text” are to Merges, Menell & Lemley, Intellectual Property in the New Technological Age (Revised 4th ed. 2007). References to “Supp” are to Merges, Menell & Lemley, Intellectual Property in the New Technological Age 2008 Case and Statutory Supplement.
When completing the assignments below, students are expected to read the text of the Lanham Act (Supp. 345-398) referenced in each assigned reading, paying particular attention to Lanham Act Sections 32-35 and 43.
Evaluation will be by closed-book exam. Consistent high-quality class participation may raise a student’s grade by one half-grade (e.g., from a B to a B+). More than one unexcused absence from class may lower a student’s grade by one half-grade (e.g., from a B+ to a B).
Course expectations will be discussed in more detail at the first class on February 9.
2/10--Trademark history and theory; What can be protected by trademark? Reading: Text 633-650
2/12--Establishing trademark rights; Classification and protection of marks Reading: Text 650-64
2/17--Trade dress and product configurationReading: Text 664-76
2/19--Priority of marksReading: Text 676-95
2/24—Trademark infringement; DilutionReading: Text 725-39; Supp. 25-32; Text 750-52
2/26—Defenses to trademark infringement; Nominative UseReading: Text 787-807, 821-31
3/3--Franchising; CybersquattingReading: Text 755-771
3/5—Remedies for trademark infringementReading: Text 838-51
3/10--Review
Winter 2009
Syllabus
Winter Quarter
Overview of Copyright Portion of IP Survey
Professor Steve Davis
steve@stevebdavis.com
206-335-9559
Learning Objectives:
Students will gain a basic understanding of the statutory and case law pertaining to copyright, and some of the broader issues involved in a legal practice engaged with copyright issues. The focus will primarily be on U.S. copyright law, but some international themes and regulations will be addressed. These topics will be examined from both theoretical and practical perspectives, particularly with a view of the development of copyright doctrine and legislation as a response to, and at times an important influence upon, the business models emerging from the burgeoning technology and entertainment industries. A consideration of the various stakeholders’ interests in the efficacy and impact of copyright law will serve as a key analytical framework.
This portion of the course will conclude with an exercise designed to give students an opportunity to apply copyright doctrine in a realistic business opportunity.
Expectations:
Each 90 minutes class will include some lecture and open discussion or exercises. Attendance is important in part because I will sometimes lecture on material not covered in the reading assignments. I will try to post all handouts or presentations will on the website or blog after class. If you are unable to attend class, please let me know, and make arrangements for another student to give you notes and handouts.
On the first day of class, I will pass around an “expert” sign-up sheet for most of the remaining classes. Each student must be an expert once. Up to five students may be experts on a given day. Experts will be responsible for particularly thorough preparation of that day’s assignment and ready to take the lead on responding to questions and participating in discussions. I encourage experts to collaborate with each other and to share the fruits of their labors with the rest of the class. Experts are welcome to meet with me individually or as a group in advance of their class day. (That will require some advance preparation and scheduling, obviously). Experts may exchange days with another student, but please notify me so that I can update my records.
The use of experts, however, does not relieve other students from being fully prepared to discuss the topics and readings on any given day.
We will also create a blog to be used both as a tool for communications about our topics, as well as an on-line forum for discussions between classes. Each student will be expected to contribute to the blog at least once during the quarter.
There is an abundance of literature and material related to the long and complex development of copyright law in the U.S. and abroad. The assigned readings below have been selected to make your reading manageable, albeit there are still some lengthy assignments. I will occasionally offer additional materials for you to read and consider.
Evaluation:
Your overall score in the copyright portion of the class will constitute 50% of you quarter grade.
As to that portion of the grade, each student must be an expert once and will be evaluated on their contributions in that capacity, which will constitute 25% of your final evaluation for the copyright section.
In addition, general class participation and engagement will constitute another 25%. This includes your contributions to the blog.
The final 50% will be judged on a copyright exercise that will be due on the Monday after the last day of the copyright section of the course, February 9. I will provide the assignment to you by mid-January. This shall be an individual exercise.
* * *
Required Text:
Merges, Menell & Lemley, Intellectual Property in the New Technological Age (Revised 4th ed. 2007) (Note that the following includes readings for the Revised 4th Edition.)
Other Resources:
Ginsburg & Dreyfuss, Intellectual Property Stories (Foundation Press 2005) (recommended but not required)
U.S. Copyright Office: http://www.copyright.gov (and links contained therein)
Online digest of internet-related copyright cases, compiled by Perkins Coie LLP: http://www.perkinscoie.com/casedigest/icd_results.cfm?keyword1=copyright&topic=Copyright (and links contained therein)
Kernochan Center Intellectual Property Program: http://www.law.columbia.edu/center_program/kernochan/IIPPResources
Schedule of Assignments: Assignments are subject to modest change.
1/6 Introduction: lecture on IP history & philosophy; structure of the Copyright Act of 1976; international copyright regimes; enforcement & remedies; Reading: Text 383- 392; 616-632.
1/8 What is copyrightable? 17 U.S.C. §102(a); Reading: Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884); Text 392 – 405; 436 – 446.
1/13 What is not copyrightable? the idea-expression dichotomy; merger of useful items with expression, 17 U.S.C. § 102(b); unlicensed derivative works, 17 U.S.C. § 103; Reading: Text 411 – 431; 500 – 510.
1/15 Exclusive rights of the copyright holder; 17 U.S.C. §§106, 106A; Proving Infringement; Reading: Text 474 – 500; 510 – 522.
1/20 Limitations on the Rights: Fair Use, 17 U.S.C. 107; Reading: Text 522 – 569; 609 – 615.
1/22 Fair Use. See readings from 1/20 and additional handouts.
1/27 How this Really Works in Practice? Outside Lecturer
1/29 The Digital Millennium Copyright Act; Indirect Liability; ISP Safe Harbors. 17 U.S.C. §1201, et seq., § 17 U.S.C. §512.; Handouts/Blog on DMCA today; Reading: Text: 580 – 609.
2/3 Locating initial ownership; formalities; implications for sales and licensing agreements; Reading: Text 446 – 474; 405 – 411.
2/5 Duration, restoration and termination; scope; implications for sales and licensing agreements; federal pre-emption, 17 U.S.C. §301; Reading: Text 465 – 474
Written answers to the copyright exercise are due to Academic Services on Monday, 2/9, by 1:00 p.m.
Overview of Trademark Portion of IP Survey
Professor Michael Atkins
matkins@grahamdunn.com(206) 340-9614
Winter 2009
Class will be taught in lecture and discussion formats based on the assigned readings from the casebook and supplement, and associated sections of the Lanham Act, 15 U.S.C. § 1051, et seq.)
Reading references below to “Text” are to Merges, Menell & Lemley, Intellectual Property in the New Technological Age (Revised 4th ed. 2007). References to “Supp” are to Merges, Menell & Lemley, Intellectual Property in the New Technological Age 2008 Case and Statutory Supplement.
When completing the assignments below, students are expected to read the text of the Lanham Act (Supp. 345-398) referenced in each assigned reading, paying particular attention to Lanham Act Sections 32-35 and 43.
Evaluation will be by closed-book exam. Consistent high-quality class participation may raise a student’s grade by one half-grade (e.g., from a B to a B+). More than one unexcused absence from class may lower a student’s grade by one half-grade (e.g., from a B+ to a B).
Course expectations will be discussed in more detail at the first class on February 9.
2/10--Trademark history and theory; What can be protected by trademark? Reading: Text 633-650
2/12--Establishing trademark rights; Classification and protection of marks Reading: Text 650-64
2/17--Trade dress and product configurationReading: Text 664-76
2/19--Priority of marksReading: Text 676-95
2/24—Trademark infringement; DilutionReading: Text 725-39; Supp. 25-32; Text 750-52
2/26—Defenses to trademark infringement; Nominative UseReading: Text 787-807, 821-31
3/3--Franchising; CybersquattingReading: Text 755-771
3/5—Remedies for trademark infringementReading: Text 838-51
3/10--Review
Welcome!
Finally -- we have a blog! Welcome. I hope everyone in the course uses this freely as a way for communication, to check assignments, to ask questions, tell stories, suggest readings, or keep in touch. After all, as i.p. specialists in the making, we all need to explore the boundaries of new media with each other.
Please do not hesitate to contact me if you have questions.
Steve -
steve@stevebdavis.com
Please do not hesitate to contact me if you have questions.
Steve -
steve@stevebdavis.com
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