Monday, February 28, 2011

Top 50 Intellectual Property Law Blogs of All Time - Source Justia Blawgsearch

According to Justia's Blawgsearch, these are the top 50 Intellectual Property Law Blogs of all time

1.  IP Thinktank
2. IPKat
3. Patent Docs
4. Patently-O
5. IPBiz
6. The Trademark Blog
7. Recording Industry v. The People
8.  Technology & Marketing Law Blog
9. 43(B)log
10. Philip Brooks Patent Infringement Blog
11. University of Chicago Law School Faculty Blog
12.  Chicago IP Litigation Blog
13.  Two Seventy-One Patent Blog
14.  Eastern District of Texas Federal Court Practice Blog
15.  The TTABlog
16. Illinois Business Law Society
17. Seattle Trademark Lawyer
18. Orange Book Blog
19.  Plagiarism Today
20.  Patent Baristas
21.  Erik J. Heels
22.  I/P Updates
23. Los Angeles Intellectual Property Blog
24. Patent Arcade
25.  University of Chicago Law School Faculty Podcast
26.  The Patry Copyright Blog
27.  Copywrite
28.  Anticipatethis.com
29.  US Law Watch
30.  Furd Log
31.  The Prior Art
32.  Library Law Blog
33.  IP Watchdog
34.   Likelihood of Confusion
35.  Trade Secrets Blog
36.   Tiny Tech IP
37.   Maryland Intellectual Property Law Blog
38.  Daily Dose of IP
39.  Internet Cases
40.  ITC 337 Law Blog
41.  Counterfeit Chic
42.  IP Dragon
43.  Law & Disorder
44.  The Invent Blog
45.  Patent Prospector
46.  Filewrapper.com
47.  Duets Blog
48.  Ruling Imagination:  Law and Creativity
49.  TechnoLlama
50.  Copyright Litigation Blog



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Sunday, February 27, 2011

Art Litigation: Holocaust for Dummies - The Murder and Spoliation of Fritz Grunbaum at Dachau

Holocaust for Dummies: Murder and Spoliation of Fritz Grunbaum at Dachau

Austria's Leopold Museum has refused to return artworks stolen from Fritz Grunbaum, a famous Jewish cabaret performer.   Grunbaum was arrested in Vienna by the Gestapo on March 22, 1938.   He died penniless in Dachau never having left Nazi custody on January 14, 1941.   His wife Lily was murdered at Minsk - Maly Trostinec after Fritz's death.

Austria is not alone in denying the Holocaust and the return of stolen artworks.   Oberlin College has Egon Schiele's Girl With Black Hair, which was stolen from Fritz Grunbaum


Oberlin's Allen Memorial Art Museum has refused to share its research with the heirs of Fritz Grunbaum or to permit on campus discussions of the work's provenance.  This is a shameful violation of Oberlin's academic mission.   If Oberlin has any Jewish alumni who care about undergraduate studies, I recommend teaching a course there on Fritz Grunbaum studies and demanding that anyone working at the Allen Museum or in the art history department be fired for incompetence.    US museums agreed to research their collections and publish the results under the Washington Principles.  Oberlin's failure to do so is a disgrace.

To assist everyone in understanding how the Holocaust worked and how Fritz Grunbaum's artworks were stolen from him, we have prepared the summary attached in the link above, you can also click here.   

More on Fritz Grunbaum at Art Stolen from Fritz Grunbaum.

More on Fritz Grunbaum here.

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Friday, February 25, 2011

Fair Use Fridays: Are Harvard's Fair Use Guidelines Copyrightable?

Harvard University's Copyright Law Guidelines (copied in its entirety bearing a copyright notice 2008).

Copyright Law Guidelines


When copying materials from books, journals, and other publications, HFS Centers will abide by federal copyright laws. Instructors, colleges, universities, copy shops and their employees that illegally reproduce copyrighted materials can be held responsible for copyright infringement, a federal crime. For this reason, all materials reproduced by HFS must meet the "Fair Use" guidelines laid down by the federal government. HFS is not able to obtain copyright permissions under any circumstance.

Published works enter the public domain 95 years after the death of the author UNLESS ownership rights have been transferred to another person, corporation, or estate who renews the copyright ownership with the federal government. Therefore it is best to assume that ALL published work are still protected under copyright law. A work's being "out of print" does not mean that it has entered the public domain.

Fair Use

The guidelines collectively known as "Fair Use" establish the types of teaching, research, and classroom use copying that are lawful without first obtaining permission from the copyright owner. Each copy made under fair use requires a notice of copyright.

A single copy is permitted of the following:

•Chapter from a book

•Article from a periodical or newspaper

•Short story, short essay, or short poem

•Map, chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper

Multiple copies are permitted (up to the number of students in a class) if and only if the copying meets all of the following three tests: brevity, spontaneity, and cumulative effect.

Brevity Guidelines:

•Poetry: Complete poem of less than 250 words; excerpt of not more than 250 words

•Prose: Complete article, story, or essay of fewer than 2,500 words; excerpt of not more than 10 percent from longer works

•Illustration: One map, chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue

•Map, chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper

Spontaneity Guidelines:

•The decision to use the work is at the inspiration of the individual teacher AND

•The time between the decision to use the work and the most effective use of the work in the classroom must be so close that obtaining copyright permissions would not be feasible

Cumulative Effect Guidelines:

•The copying is only for one course and will be used for just one class term

•Not more than one short poem, article, story or essay may be copied from the same author

•Not more than two excerpts may be copied from the same author

•Not more than three poems, articles, stories, essays, or excerpts from the same collective work or periodical volume

•Multiple copying is limited to nine instances per class during one term

Copies are NEVER permitted without first obtaining copyright:

•An entire book, collective work, journal, or periodical volume, regardless of its print status

•Workbooks, tests and answer sheets

•When planning in advance to distribute a number of different works in a course pack or course reader. If you need assistance printing a course pack, please consult with your Department Administrators.

For more information on copyright laws, please contact the Harvard University Office of the General Counsel, or you may visit the US Copyright Office website to answer any questions regarding Harvard's copyright policies.



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Wii Spanking Video on YouTube Censored For "Copyright Reasons"

BoingBoing reported that Wii came out with an advertisement encouraging young adults to engage in spanking games using the Wii device.   The video was posted by Ubisoft on YouTube here.

YouTube now has the message

"This video contains content from Ubisoft, who has blocked it in your country on copyright grounds."

It is odd that the poster of a video is blocking its own content on copyright grounds. If indeed, that is the grounds, was it a failure to get a synch license for the music for the US market?  Did they send a takedown notice to themselves?  See the video below:






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Fair Use Fridays: Dramatic Chipmunk Tackles Fair Use


From American University Center for Social Media, "Fair Use Is A Right" - the link is here, but they gave me no embed code, urging only to share on Facebook and Twitter.   So without a formal invitation to share on YouTube, would me posting it to YouTube be fair use?

If you are new to Dramatic Chipmunk, here is the original - with 26 million views on YouTube




Then of course Best of Dramatic Chipmunk:




A more in-depth study of Dramatic Chipmunk as one of the Internet Memes of 2007 from Rocketboom.



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Fair Use Fridays: Copyright Professors and Law Students - Help Wikipedia Rewrite The Fair Use Doctrine

I have reproduced almost the entirety of Wikipedia's entry on the fair use doctrine in italics below, you can find the original here.   It really needs some sprucing up: there is a lot of good, but it needs some of the smart folks from say EFF to give it a facelift.

I think any discussion of fair use of copyrighted works should start with the First Amendment to the U.S. Constitution and reason from there.

If I read the terms of the Wikimedia license correctly, I think I am permitted to copy the Wikipedia entry wholesale, or chop it out and edit out some things, as long as I provide attribution, that is: a credit and a link to the original, which in turn, links to the Wikipedia terms of use.

If I am incorrect, I would appreciate Wikipedian or Wikimedian feedback.


Fair useFrom Wikipedia, the free encyclopediaJump to: navigation, search
Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.


Contents


1 Fair use under United States law
1.1 Purpose and character
1.2 Nature of the copied work
1.3 Amount and substantiality
1.4 Effect upon work's value
1.5 Fair use and professional communities
2 Practical effect of fair use defense
3 Fair use as a defense
4 The economic benefit of fair use
5 Fair use and parody
6 Fair use on the Internet
7 Common misunderstandings
8 Influence internationally
8.1 Fair dealing in Canada
8.2 Fair use in Israel
8.3 Fair use in South Korea

[edit] Fair use under United States lawThe legal concept of "Test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts created a doctrine of "fair abridgment" in Gyles v Wilcox, which eventually evolved into the modern concept of "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.


17 U.S.C. § 107


Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:


1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]


The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:


[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy…

In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Once these factors were codified as guidelines in 17 U.S.C. § 107, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.


[edit] Purpose and characterThe first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.


When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[2] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.[3]


However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval.[4] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,[5] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.


The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use."[6] More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative." Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair.[7] See also L.A. Times v. Free Republic, described below.


[edit] Nature of the copied workAlthough the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.[8]


To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.[9]


Following the decisions of the Second Circuit in Salinger v. Random House, Inc.[10] and in New Era Publications Int'l v. Henry Holt & Co.,[11] the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some[who?] view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
[edit] Amount and substantialityThe third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use." Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,[12] the use of fewer than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.[13] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[14] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.
[edit] Effect upon work's valueThe fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios,[15] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc.[16] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.[17] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.[18]


Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.


[edit] Fair use and professional communitiesCourts, when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.[citation needed]

[edit] Practical effect of fair use defenseThe practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."


The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim."


[edit] Fair use as a defenseThe Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[16] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.


Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.


Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.


The frequent argument over whether fair use is a "right" or a "defense"[19] is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense."


In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.


In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[20] Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[21]


On September 2, 2009 Israeli District court ruled out a detailed decision[22] not allowing disclosure of "John Doe"'s details for the request of the FA Premier League based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.


[edit] The economic benefit of fair useA balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers. Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers.[23] On September 12, 2007, the Computer and Communications Industry Association (CCIA),[23] a group representing companies including Google Inc., Microsoft Inc.,[24] Oracle Corporation, Sun Microsystems, Yahoo[25] and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 billion dollars in annual revenue for the United States economy representing one-sixth of the total U.S. GDP.[23] The study was conducted using a methodology developed by the World Intellectual Property Organization.[23] The study found that fair use dependent industries are directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs.[23] “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA.[23] “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner."[23]


[edit] Fair use and parodyProducers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.


In Campbell v. Acuff-Rose Music, Inc.[16] Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.


A number of appellate decisions have recognized parody as a protected fair use, including both the Second (Leibovitz v. Paramount Pictures Corp.) and Ninth Circuits (Mattel v. Walking Mountain Productions). Most recently, in Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.
[edit] Fair use on the InternetA US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.
On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.
In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her 13-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.[26]
[edit] Common misunderstandingsFair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong


Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.


Fair use interpretations, once made, are static forever. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.[13][citation needed]


If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.[27]


It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.


Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership[28]


Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is not a sufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.[citation needed]


Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of L.A. Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.


Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented.


The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required[29] and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.


It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the U.S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.[30]


You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[31]


If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.


If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.


[edit] Influence internationallyWhile many other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.[32]
While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. However many countries have some reference to an exemption for educational use, although the extent of this exemption may vary widely.[33]
[edit] Fair dealing in CanadaThe Copyright Act establishes fair dealing in Canada, which allows specific exceptions to copyright protection. The open-ended concept of fair use is not observed in Canadian law. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that “the present fair dealing provisions should not be replaced by the substantially wider ‘fair use’ concept.”[34]
CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339, 2004 SCC 13 is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.
[edit] Fair use in IsraelIn November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution.[35] The law sets up four factors, similar to those of section 107 under American law, to determine whether a use is fair use.
See also "Fair use as a defense" above and the Fapl v. Ploni decision.[22][36]
[edit] Fair use in South KoreaThe Korean Copyright Act newly amended in 2009, in articles 23~38 of section 4-2 (Limitation to the author's property rights), defines the exceptional use of copyrighted material without permission from copyright holders. However, a broad concept of fair use as in the above countries still does not exist in the Korean Copyright Act.


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Thursday, February 24, 2011

Best Business Book of the Year - The Master Switch By Tim Wu



Good business writing is really a delight.   And when a really talented, visionary writer takes on a business history, the result can be breathtaking.    Tim Wu has done just that, in a masterful, entertaining work that really should win a  best business book of the year.

Wu has taken the history of telephone - AT&T - of radio and RCA and walked us through those times in history when an "open" technology has become closed, and when a monopolist has been able to strangle free speech here in the land of the free.

Wu is a law professor and a specialist in intellectual property.  He is generally acknowledged to have coined the term "net neutrality".   But despite those scary geek credentials, he's written a vibrant work of business history that works in the Kronos myth.   This is an important, literate work and a must-read for anyone who wishes to understand the current Apple vs Google debate - I have never seen it explained so well, nor had I realized how much was at stake.

I laud Wu for not only laying out the history, but also having the guts to put out a solution, something that he calls the Separations Principle.   That is, the people who create the content shouldn't own the means of distribution and vice versa when it comes to the information economy.   I am sure he is right, I just didn't quite understand why he was so dismissive of antitrust law.

It always seemed to me that the way cell phones are sold in the US are illegal tying arrangements where consumers are forced to buy expensive cell phone plans to get a phone.   Stuck in a damned plan, you can't get out without getting charged a fortune and you can't get a good cheap new phone at the most competitive rate.    I remember vaguely that the US Tobacco trust used its cigarette machine patent abusively and ended up monopolizing ownership of tobacco farms - I thought this was all illegal tying, but this type of anticompetitive behavior is a commonplace today.   Owners of devices routinely thwart consumer freedom, free trade, and competition.   As Wu makes clear, Apple is the worst offender, thwarting all possibility of consumer freedom through technological gimmicks.

I am not sure how Wu's "Separation Principle" differs from the classic forbidden tying arrangement I learned in antitrust law, but it seems to me that many of the media conglomerates are misusing machines, patents, and copyrights in exactly that way.    Maybe we need the new theory, or maybe the Department of Justice and the FCC need a wakeup call and a knock on the head.

Wu's book is likely to be extraordinarily influential in telecommunications and information technology regulation in years to come.   But don't buy it for that reason.  Buy it because it is a rip-roaring good read and will help you understand and care about where we are headed next.

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Tuesday, February 22, 2011

Judicial Vacancies: The Impact on Federal Litigation



Video on the impact of judicial vacancies on federal litigation above. More on judicial vacancies from the Federal Bar Association here.

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US Marshals Service Has First Female Director

10th Director of the US Marshals Service is Stacia Hylton, story here.

Link to webcast of the nomination hearing before the Senate here.

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Monday, February 21, 2011

Presidents Day and the Federal Bar Association


Happy Presidents Day.  Interview with Federal Bar Association President and New Orleans attorney Ashley Belleau in The Third Branch here    The Federal Bar Association adresses issues of paramount concern to the federal judiciary such as judicial vacancies, courthouse security and judicial compensation, as well as addressing issues of concern to lawyers practicing in the federal government, appearing before federal agencies, or practicing before the federal courts.

The Federal Bar Association is the nation's premier bar association for the federal practitioner.  Find your local chapter and join here.

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Dorothy's Not In Kansas Anymore: Public Domain Film Posters With Slogans Found To Infringe

Good post on a copyright litigation involving the use of film posters in the public domain from the Wizard of Oz on the Patentlyo blog here.    For those interested in character licensing, dead celebrities, and the Supreme Court's warning in Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003) that trademark and copyright law should not be combined to create a mutant species of copyright law that lives forever, tune in to Warner Bros. v. X One X.


 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Appellate Practice: Perfecting a Civil Appeal in Federal Court - Ninth Circuit



This is an exellent video explaining in simple language how to prepare an appeal in a federal civil case.   For anyone preparing an appellate argument, it is a good overview of the basics and a great way to remember how important it is to master the facts, prepare well, and to keep things clear and simple when arguing before the federal courts.

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Friday, February 18, 2011

Fair Use Fridays: Hitler phones Mubarak



More from the Hitler Downfall Parodies Channel
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Fair Use Fridays: RJD2 Confesses To Ripping KFC Beats From Television



Remix RJD2 confesses to ripping KFC lyrics, HT to Mashable.

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Fair Use Fridays: Fedflix - Finding Public Domain Videos From the Federal Government



Fedflix - how to find and download public domain videos created by the federal government video by NewCenturyHistory.   Works created by the federal government are in the public domain.   YouTube video explaining how to navigate http://www.archive.org/details/FedFlix

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Fair Use Fridays: Spiderman Meets Marbury v Madison



With great power comes great responsibility. Great intro to Marbury v Madison. Excelsior!

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Wednesday, February 16, 2011

Removal, Remand and Preemption



There are few procedural maneuvers in the practice of law so satisfying as removal.   "Removal" means simply filing a notice with a state court that the matter is being removed to state court.  Removal is authorized by 28 USC 1441(a).  

Removal is appropriate under certain circumstances where the federal district could had original jurisdiction.   If you don't like being removed, the remedy is a motion to remand.

The above video is a great introduction to the topic.

In copyright law, the complete preemption doctrine is said to apply.

Chapter 10 of Copyright Litigation Handbook:  Removal From State Court and Preemption deals with these topics in the unique context of this interplay of state/federal jurisdictions and the Copyright Act.

If you want to remove, you have to act very very quickly, the usual deadlines don't apply and by the time you've thought things through, it may be too late.

More on the Law of Avatars and preemption here.
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9th Circuit en Banc: Preemption of Contracts Involving Ideas, and Judges on YouTube: Gnarly!



The 9th Circuit Court of Appeals has a channel on YouTube. A couple of weeks back, I met Chief Judge Alex Kozinski at a Federal Bar Association cocktail party with the greeting "Hey Judge I saw you on YouTube!" This is the type of greeting that New Yorkers think Californians will enjoy. I survived the greeting to have a good discussion. The Cassirer case, the Ninth Circuit en banc video on YouTube here.

But once again, I am drawn back to YouTube for a wonderful argument on an important case (thank you Anonymous tipster). My initial post on the 9th Circuit's original decision in Montz v. Pilgrim Films here.

I rarely take a position in copyright cases (as opposed to Nazi art looting cases) saying that a case is right or wrong. Sometimes I say that a copyright case is well-reasoned. But Montz v. Pilgrim Films, as you can see from my earlier post here, is a case where I opined that the 9th Circuit was "clearly incorrect".

Now with the argument on YouTube, you too can access the wonderful world of copyright and the cutting-edge issue of preemption. Here, the issue is whether or not a state can regulate contracts governing the buying and selling of ideas. This is big, heady, important stuff and this case is of extraordinary importance. I am happy to see the Ninth Circuit take it en banc.

In Chapter 10 of Copyright Litigation Handbook "Removal from State Court and Preemption" I cover the tension between the Copyright Act and state law.

More Copyright Litigation Blog posts on preemption here.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Seventh Circuit: No Moral Rights In Flower Gardens Under VARA


In Chapman Kelly v. Chicago Park District, 2011 WL 501161 (7th Cir. Feb 15, 2011), the Seventh Circuit rejected a claim of moral rights in a public garden in Chicago.

What is a painting?  What is a sculpture?   What is original and what is fixation?   All interesting questions tackled by the Seventh Circuit in determining whether an artist had moral rights in a garden under the Visual Artists Rights Act.

From the decision (linked below)

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures,and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

Chapman Kelly v Chicago Park District


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Monday, February 14, 2011

Copyright Lawsuit is Alleged To Be Liberty Media Gay Porn Extortion Plot Against University of Michigan, Manhattan College


On February 11, 2011, a woman acting pro se made a motion to dismiss or to sever the claims against her based on the plaintiff's failure to allege "purposeful availment" of the Plaintiff's business in California.  From her motion:

    "Plaintiff Liberty Media Holdings, LLC ("Plaintiff') is a producer of

9      pornographic materials, who has filed this Complaint in an effort to extort money from
10    various individuals, including Ms. Lewis. The basis of Plaintiff's lawsuit is that
11    Ms. Lewis, or someone using her IP address, accessed explicit internet content-
12    purportedly, one movie-by "bypassing the necessary payment and login steps required
13    of users." (Complaint,')[ 2.) But Plaintiff refuses to provide any evidence that Ms. Lewis
14    accessed any alleged movie.
 
The well-written motion is in the third person, casting doubt on whether Ms. Lewis drafted the motion or was herself represented by a John Doe attorney.
 
In the same case, Liberty Media Holdings LLC v. Does 1-59, 2011 292 WL 292128 (S.D. Cal. Jan. 25, 2011), the court ordered disclosure of personal information from University of Michigan and Manhattan College among others.

The movant claims she is an electrician from New Jersey and never accessed http://www.corbinfisher.com/.

The complaint claims that the Does accessed its served and obtained copyrighted materials.

The SD Cal judge is giving the colleges and the individuals the opportunity to quash the subpoena.

12 b Motion to Dismiss Liberty Media Holdings v. John Does 1-59

Corbin FisherFrom Wikipedia, the free encyclopediaJump to: navigation, search


According to Wikipedia, Corbin Fisher is an alias.   The information on Wikipedia also suggests that http://www.amateurcollegemen.com/ may not be strictly amateur.

From Wikipedia:

Corbin Fisher
Logo
Type LLC
Industry Film
Genre Film studio
Founded 2004
Founder(s) Corbin Fisher
Headquarters San Diego, CA, USA
Key people Jason Gibson, CEO
Brian Dunlap, vice president
Marc Randazza, general counsel
Products Gay pornography
Website CorbinFisher.com
Corbin Fisher is an American film studio with a focus in gay pornography. The studio maintains a website at CorbinFisher.com; other web properties of the company include AmateurCollegeMen.com, AmateurCollegeSex.com and ShopCorbinFisher.com.[1] The company also produces pornographic photo books. The company is based in San Diego, California.[2] The founder of Corbin Fisher, who goes by the same name as an alias, started filming men and making videos during his spare time, and started the website CorbinFisher.com in 2004. AmateurCollegeMen.com was also begun in 2004, and the company grew quickly. It launched AmateurCollegeSex.com in 2006, and the company continued to focus on a niche of straight male actors performing in gay pornography.

In September 2008, the company began offering health benefits, scholarships, and 401(k) pension plans to actors who signed exclusive contracts with the company. The company released its first full-length DVD in September 2008, and a photobook Playing Hard to Get was produced in 2009. In 2009, the gay Europorn studio Bel Ami chose Corbin Fisher as its first collaboration on a production with a studio based in the United States. Free speech attorney Marc Randazza was brought on as the company's general counsel in 2009, and he helped bring about a settlement with a cellphone content provider after Corbin Fisher brought a copyright infringement claim against the provider. In November 2009, Corbin Fisher offered a contract deal to Levi Johnston, father of Republican party politician Sarah Palin's grandchild.

Corbin Fisher's products have been well-received, both by others within the industry and by media commentators. In 2006, Corbin Fisher won an award in the category of Adult Gay Megasite at the Cybersocket Awards. Since then, it has been recognized with multiple nominations for awards within the industry; both for its video content and websites. The company received the Free Speech Coalition Award of Excellence at the 2010 Cybersocket Awards.

Marc Randazza, the attorney representing Liberty Media, is Corbin Fisher's General Counsel and a blogger who edits The Legal Satyricon.

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Baby Judge School Starring USDJ Sonia Sotomayor



Lawyers practicing before the federal courts always wonder about what goes on behind the scenes in the federal courts. Judges refer to "baby judge school" conducted by the Administrative Office. Here is an orientation video created by the Federal Judicial Center explaining the confirmation process and what you need to know when you ascend the bench.

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Saturday, February 12, 2011

Jimi Hendrix - Dead Celebrity Rights of Publicity Not Resurrected By Washington State Law


In Experience Hendrix, LLC v. Hendrixlicensing.com, (W.D.Wa. Feb. 8, 2011 (Zilly, J.), a federal judge in the Western District of Washington struck down as unconstitutional a Washington State law that attempted to grant dead celebrities, including Jimi Hendrix, a posthumous right of publicity.

I have previously discussed rights of publicity (also known as rights of privacy) here and here and here.
Jimi Hendrix died in New York. New York does not grant a posthumous right of publicity. That has created major litigation in the past over, for example, Marilyn Monroe's image and name. Hendrix was not a Washington State domiciliary, so granting his estate a right of publicity would effectively have created a right that conflicted with New York law.

The court engaged in a careful choice of law (conflicts of law) analyis. It used the principle of "depecage" (I don't have a circonflexe on this blog).  "Depecage" means parsing out the law of each juridisction that may govern an issue in a case.  Courts rarely go this deeply and thoughtfully into choice of law analyses, so the opinion is noteworthy in that aspect.

The decision is also noteworthy in that it carefully unbundles the various rights that may be caught up in licensing someone else's name and image including trademark and copyright.

For example, if you have a photograph of Jimi Hendrix, it may be "nominative fair use" to use Hendrix's name to identify the photograph, even if someone else owns the Hendrix trademark.

The estate of Elvis, who died in Tennessee, has the right to exploit his name and image under Tennessee law.

Be careful before paying a lot of money for a license to ensure that the rights really exist.   Similarly, when accused of infringement, take a careful look at the underlying intellectual property claims.
Jim Hendrix and Rights of Publicity for Dead Celebrities: Experience Hendrix v Hendrixlicensing.com


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