Germany limits piracy penalties

July 5, 2013

Germany has limited individual piracy penalties to about $1,300 a pop. (source). On one side, I think that’s a reasonable penalty for stealing a song or a movie. On the other hand, it isn’t if there are procedural hurdles to actually being able to enforce even that low amount. I don’t know German civil procedure, so no idea on that.


First Amendment vs. Disabilities Act

May 12, 2013

(From Charles Platt) Is this a real threat, or just posturing? The ADA has already been extended far beyond the areas in which is was first designed to apply. I can certainly imagine regulations compelling web sites to be “equally accessible” to the disabled. Discussion here.


Alleged Copyright Troll’s Day in Court

March 12, 2013

No matter your opinion on U.S. copyright law, it is the law of the land. Copying a work without consent may be unlawful and subject the copier to damages. On this blog, and others, we’ve seen instances of legitimate and illegitimate copyright claims.

An entirely separate issue is the manner by which copyright claims are enforced. In the U.S. District Court for the Central District of California, there have been concerns raised regarding certain attorneys, their firms, and (as the judge termed it) their “shell” companies. Yesterday, a hearing was held at which certain non-appearing attorneys affiliated with Prenda Law were invited to attend, as well as an attorney formerly associated with that firm. Ken White at Popehat attended and his writeup is here: http://www.popehat.com/2013/03/11/brett-gibbs-gets-his-day-in-court-but-prenda-law-is-the-star/

This is a case in which the Plaintiff even dismissed the case against the Defendant, but the Court is exploring whether there was fraud committed by the Plaintiff or its counsel in consolidated and related matters. Hearings like this generally do not occur, and apparently the non-appearing attorneys affiliated with Prenda appeared by counsel, rather than in person, which may have violated the court’s order (although they made a last-minute filing arguing they could not properly be compelled to attend). What is particularly interesting is that the subject lawyers and Plaintiffs have been intimately involved with the development of how Bittorrent claims are prosecuted, including early discovery orders, mass joinder, etc. Of note, it has become practice for a content provider to sue John Does, because all that is available is the IP address used to access a covered work. A subpoena is issued to the ISP, who may provide the identity of an account holder. Common practice is then to make a demand on the account holder or amend the complaint to identify them by name. Of concern by this court and others is that the account holder may not be the infringer. A content provider may need to engage in further discovery and investigation to find out who may have had access to the internet connection prior to naming the person as defendant. Recent rulings have suggested that just as you cannot simply sue the person who owns a telephone for a call that may have given rise to liability, you must sue the caller, you cannot simply sue the internet account holder. This court has questioned the Plaintiff’s and its attorneys’ efforts in identifying the infringer. Additional procedural concerns are raised in this case over who financially benefits in the litigation and how content has been transferred.

The docket in Ingenuity 13 v Doe, 2:12-cv-08333 is here:

http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html


Finally, someone uses “IP Troll” properly

January 9, 2013

Lee Cheng, Chief Legal Officer of online retailer Newegg, said:

“A troll is a type of entity that doesn’t sell a product, or transfer value of any sort. All they offer is the right to not be sued. It’s protection money. To put it bluntly, it’s extortion.” (source)

Righthaven produced nothing but lawsuits. The term is properly applied to them. Porn companies, record companies, and other companies trying to stop infringement, or trying to recoup losses from infringement are not properly so-labeled.


Deadspin Weighs in on Raanan Katz Suit

December 18, 2012
FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him.  Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit. 

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

As Randazza is counsel of record in the case, we provide no comment beyond a link to the appellate brief in the case.


Copyright in Tattoo Case: Escobedo v. THQ, Inc.

December 9, 2012
Excerpt from Escobedo v. THQ Inc. lawsuit including "signature moment" shot allegation.

Excerpt from Escobedo v. THQ Inc. lawsuit including “signature moment” shot allegation.

A tattoo artist sued THQ, Inc., the makers of a UFC themed video games, for copyright infringement. The artist tattooed a lion on Carlos Condit’s torso, and claims that it was his original creation. (Complaint at 12) The artist alleges that he created the original design, and owns a registration for the copyright to the design. (Compl. at 16). He claims that by using the work in a video game, depicting Carlos Condit, THQ infringed upon his copyright in the work.

The artist’s attorney said, in a press release,

“People often believe that they own the images that are tattooed on them by tattoo artists,” explains Speth. “In reality, the owner of the tattoo artwork is the creator of the work, unless there is a written assignment of the copyright in the tattoo art.” Escobedo and Condit never had a written agreement. Thus, claims Escobedo in the lawsuit, he remains the owner of the copyright over the image he drew.(source).

Nothing in this statement is false, but that doesn’t mean that this gets you to the correct answer. Here is the correct answer:

1. Ownership of the copyright: If the tattoo artist designed the tattoo, unless the tattoo artist signed a “work for hire” agreement, then the copyright in the tattoo is, presumptively, his intellectual property. No question about it. Therefore, I can’t take a copy of that tattoo and make posters of it. Nor can Condit. I can’t re-license it to other people. On ownership of the copyright, I think the artist wins, hands down.

But, that doesn’t mean that he wins the case.

2. Fair Use: I see very little room to argue that THQ’s use is not fair use. THQ has the right to use Condit’s likeness. That likeness happens to have been augmented with someone else’s copyrighted work. The copyright owner can no sooner prohibit this use than he can prohibit me from using it demonstratively as I have in this piece (doubly so, since I clipped it from his complaint). THQ can’t accurately depict Condit without the tattoo. THQ can not be prohibited from depicting Condit accurately, just because the artist wants more money.

That said, there might be some theoretical claims, but not against THQ.

Condit himself might (I stress MIGHT) have some liability. This is a highly theoretical argument – but I presume that Condit got paid for the right to use his likeness in the video game. Lets say that the agreement has a clause that states that Condit has the legal ability to transfer or license all relevant rights. There *might* be an argument that Condit did not have the right to assign the rights to the ink, and thus the artist gets a portion of Condit’s profits. Again, theory here, and not likely. But, if I had to save the case, I’d argue that.

Right of Publicity: The tattoo has now become part of Condit’s persona. So, could copyright actually limit his right of publicity? Again, an interesting egghead argument to be merged with #3, but essentially, if the artist prevailed against Condit, it would mean that anyone who gets a tattoo without a work for hire agreement has mortgaged a certain portion of their publicity rights to the tattoo artist. I am not seeing that as a winning theory.

Bottom line: Fair use, artist loses. Creative arguments could revive the case under some exotic uses of state law claims, which would (at best) be against Condit, and for a small fraction of what Condit himself earned, but even then, I can’t see them carrying the day.

The case is Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix).

H/T: TechDirt


From engagement photo to political attack ad…

October 11, 2012

In May of 2010, Thomas Privitere and Brian Edwards, a gay couple, hired a photographer to take pictures of the two men in a New York City park.  Their favorite photograph displayed the two men kissing and holding hands with the Brooklyn Bridge in the background.  The couple liked the picture so much that they posted it on the Internet as their engagement photo.

Cut to Spring of 2011:  Public Advocate of the United States, a conservative nonprofit, needed a photograph for a political flyer to take a Republican State Senator from Colorado to task for voting to approve same-sex civil unions.  Public Advocate ran across Privitere’s and Edwards’ engagement photograph on the Internet.  Presumably, the nonprofit believed Coloradans would find an image of two men innocently and chastely kissing inherently gross, and decided to use the photo for its attack ad.  Before doing so, Public Advocate doctored the image – removing the Brooklyn Bridge and replacing it with imagery reminiscent of a Colorado mountaintop.

Unsurprisingly, Privitere, Edwards, and their photographer were not flattered when they discovered that the couple’s engagement photo had been used by a right wing “think tank” to appeal to Colorado voters’ homophobia.  Earlier this month, the three filed suit against Public Advocate in federal court for copyright infringement on the photograph and misappropriation of the couple’s likeness.

Public Advocate’s use of the engagement photo should certainly be morally reprehensible to any reasonably tolerant person, and the photographer appears to have a very strong copyright infringement claim against the nonprofit.  Public Advocate has no real fair use defense here.  The political mailer was not meant to criticize or parody the original photograph.  Instead, it was meant to denigrate a politician’s views on same sex marriage or civil unions.

However, were the couple’s rights of publicity violated?  That question is a much harder one and could likely swing either way should this case proceed to trial. Rights of publicity laws are generally intended to protect persons from the unauthorized commercial use of their likenesses.  For example, Nevada’s rights of publicity laws define “commercial use” as being “for the purposes of advertising, selling, or soliciting the purchase of any product, merchandise, goods, or service.”

Here, Public Advocate has a strong argument that the flyers that it produced were purely political speech protected by the First Amendment.  The organization was not attempting to use the photograph for any commonly recognized “commercial” purpose.  Rather, it was using the image to advance its objection to homosexual civil union.

On the other hand, Public Advocate’s own website proclaims that some of its primary goals are to provide “strong and vocal opposition” to “[s]ame sex marriage and the furtherance of so-called ‘Gay Rights’” and to decry the “mainstream media’s promotion and glorification of . . . homosexuality.”  (Public Advocate is the organization that infamously compared same-sex unions to state-sanctioned bestiality, and claimed that allowing gay men to serve in the Boy Scouts was akin to “being an accessory to the rape of hundreds of boys.”)  Its website prominently asks social conservatives for contributions so that it might continue spreading its message to the masses.  If a court were to view the political mailer containing the doctored photograph as, in part, a solicitation for increased funding, the requisite “commercial use” may very well be present.

 

 


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