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.

 

 


More Legal Stupidity – Brought to you by “The Innocence of Muslims”

October 7, 2012

The Innocence of Muslims seems to be the place wehre really stupid free speech positions intersect with the Arab-Israeli conflict.

In the latest installment, we have the dumbest copyright infringement suit filed by anyone whose name does not end in “haven.”

Actress Cindy Lee Garcia appeared in the now-infamous online film “The Innocence of Muslims.” She first filed a lawsuit in California state court, trying to get a state judge to order YouTube to remove the film from publication. (Complaint) She claimed that the director told her that she would star in a “desert adventure film,” but the actual movie was one in which the Prophet Mohammed appeared to perform cunnilingus on Garcia’s character. The state court judge refused to pull the film, and opined that Garcia was not likely to prevail on the merits of her lawsuit. (Order). Garcia then dropped her case and re-filed in federal court. Her complaint is attached. [PDF]

For the purposes of this piece, let us presume that Ms. Garcia was indeed duped and that she had no idea that she was going to appear in such a movie. If that is the case, she might have claims for fraud; she might have claims for unfair business practices; she might even have a valid claim under some other theory.

However, this article is about the truly moronic claim that her lawyers decided to bring – copyright infringement.

Before we even get into that claim, let’s take a look at the press release that came out along with the complaint. I guess her lawyers live by the credo of making sure to yell “look y’all, watch this!” before doing something completely stupid.

“We are seeking the legally appropriate mechanism and the least politically controversial one to allow Google and YouTube to do the right thing,” according to M. Cris Armenta, counsel to Ms. Garcia. “Again, this is not a First Amendment case. But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.” In Ms. Garcia’s case, the words that were dubbed over her performance were not hers and she finds them personally and profoundly offensive. Ms. Garcia has publicly stated worldwide, including in live broadcasts to Middle Eastern television stations that she does not condone the message in the film and would never willingly participate in such a hateful venture.

You get that? This is not a First Amendment case. Why not? Because M. Cris Armenta says it isn’t. That might make her feel better as she is sitting around her conference room table, but it doesn’t make it so. Of course, someone with their head so far up their ass that they believe that the First Amendment protects “the right to be free from expression,” probably looks really funny sitting at a conference room table – what with the head in the ass and all.

Ms. Garcia “filed an application for a federal copyright registration for the rights in her dramatic performance ‘Desert Warrior.'” (Complaint at ¶ 11) Further, she “has issued five DMCA ‘takedown notices’ to Defendants YouTube and Google.” (Complaint at ¶ 13) But let us all remember, “this lawsuit is not an attack on the First Amendment, nor on the right of Americans to say what they think, but does request that the offending content be removed from the Internet because not only is it not speech protected by the First Amendment, it violates Plaintiff Garcia’s copyright in her performance.” (para 29) How convenient. It is not an “attack on the First Amendment” because Ms. Garcia’s lawyers cleverly simply declare that the content is “not speech.” Meanwhile, I guess that she owns the copyright in the film because she filed an application for a registration.

The press release sent out by Garcia’s lawyers claims that the attorneys responsible for this monstrosity were “previously affiliated” with Skadden Arps Slate Meagher & Flom LLP and both are former federal law clerks. What does that tell you? Being at the top of your class doesn’t mean that you don’t have shit for brains. Those of you attending TTT law schools take note. While chances are that your counterparts at the T14 did better on the LSAT, it doesn’t mean that you can’t wipe the floor with them when it comes to really practicing law.

Ms. Armenta and Ms. Sol’s complaint really is a piece of crap that no worthwhile attorney would have signed. Not only do the claims expose them as abject idiots, but the complaint exposes their client to a serious potential downside. First and foremost, Ms. Garcia most certainly does not own the copyright that she claims to. Thus, she does not have standing to bring this claim under the Copyright Act. This is not some obscure issue that it takes an IP law expert to figure out, but is clear from the plain language of 17 U.S.C. § 501(b), limiting actions for infringement to legal or beneficial owners of a registered work. When you don’t own anything, you don’t get to sue. Incredibly, Garcia filed suit in a court residing within the Ninth Circuit – which means there’s a small mountain of precedent examining this exact issue with a fine point. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1146 (9th Cir. 2008); Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 889-90 (9th Cir. 2005); Righthaven LLC v. Hoehn, 792 F. Supp. 2d 1138 (D. Nev. 2011).

Welcome to the Pwn-Dome.

An actor’s performance in a film is not an independently copyrightable work. I am surprised that these two attorneys are unfamiliar with this rule of law. They might be well-served to review Aalmuhammed v. Lee, 202 F.3d 1227 (2000). You know, the case that is in pretty much every single copyright textbook published since before the Clinton administration ended. Jesus fucking christ, is it so much to ask that someone take a copyright course before filing a copyright infringement lawsuit?

Anyhow, back to Aalmuhammed v. Lee: In that case, Mr. Aalmuhammed contributed a significant amount of work to the Spike Lee movie, The Autobiography of Malcolm X. Mr. Aalmuhammed sought to be deemed to be a co-author of the film. However, the Ninth Circuit held:

Aalmuhammed did not at any time have superintendence of the work. Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the person “who has actually formed the picture by putting the persons in position, and arranging the place ….” Spike Lee was, so far as we can tell from the record. Aalmuhammed, like Larson’s dramaturg, could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them, and the work would not benefit in the slightest unless Spike Lee chose to accept them. Aalmuhammed lacked control over the work, and absence of control is strong evidence of the absence of co-authorship.

Under the law, the director of the film (and not any other contributor) is the author of the work. Not the consultants, not the actors, and not the guy who brought everyone coffee. If it were otherwise, then every actor or anyone else who had any part in the creation of the film would then engage in a feeding frenzy over who actually owned the rights to the film. For a creative work, the author, and not “helpers” owns the copyright.

The Aalmuhammed court stated:

The Constitution establishes the social policy that our construction of the statutory term “authors” carries out. The Founding Fathers gave Congress the power to give authors copyrights in order “[t]o promote the progress of Science and useful arts.” Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.

The broader construction that Aalmuhammed proposes would extend joint authorship to many “overreaching contributors,” like the dramaturg in Thomson, and deny sole authors “exclusive authorship status simply because another person render[ed] some form of assistance.” Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were doing, if creative copyrightable contribution were all that authorship required.

The arts would certainly be more impoverished if every director had to contend with every actor, especially any actor who is disgruntled, claiming copyright in the film and thus, the right to suppress the film’s publication. ‘Cause that is what this is really about: suppressing the publication of the work. It has nothing to do with an “author” claiming her rights under Art. I, Sect. 8, of the Constitution or Title 17.

Remember that? The Constitution? It grants “authors” the right to profit from their works. The Copyright Clause was not put there so that Ms. Garcia could use it as a tool to try and deal with actress regret.

If she’s going to regret anything, it very well may be filing this case. Remember those consequences I mentioned above? Yeah, they can bite her in the ass pretty hard. If Mr. Nakoula has counsel that is even remotely competent, the first thing he will do is file a special motion to strike under California Civ. R. Pro. 425.16, the California Anti-SLAPP Statute. While this statute does not stop discovery in its tracks in federal court, the way it does in state court, it still places the fear of a quick dismissal and attorney’s fees on Garcia’s head. Furthermore, the Copyright Act, under 17 U.S.C. § 505 provides for prevailing party attorney’s fees. There is no way that Garcia can non-fraudulently claim a copyright interest in the motion picture. How her lawyers missed that is beyond me. If I were judging this case, she still might win (on some of her claims) but in the end, the Plaintiff would be the one writing a check.

Ms. Armenta and Ms. Sol have walked their client into a buzzsaw. They clearly either have no idea what they are doing when it comes to copyright law, don’t care what they copyright law is, or have some other ulterior motive for bringing this claim. Whatever their motivation, this is one of the dumbest copyright infringement suits I have ever seen. For the love of god, if this happens to wind up in front of their eyes, I have a message for them: STOP. FIND SOMEONE WHO KNOWS WHAT THE FUCK THEY ARE DOING TO HELP YOU.

While Mr. Nakoula does not seem to be the most savory guy in the world, sometimes the bad guy wins. In this case, I certainly hope that he gets competent counsel, because this complaint deserves to be met with an anti-SLAPP motion and an award of attorneys fees heaped upon Ms. Garcia’s head. Otherwise, other idiots will see it and be emboldened to bring even more idiotic litigation into our already crowded federal courts.