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
Thursday, January 29, 2009
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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