Wednesday, July 31, 2013

Copyright Law - Eighth Circuit: Will Scorched Earth Copyright Owner Be Burned By Infringer's Bankruptcy?

Copyrights and Bankruptcy,  Non-Dischargeability of Copyright Infringement Judgment in Bankruptcy, Attorneys Fees, Statutory Damages, Effect of Filing Proof of Claim on Right to Jury Trial

Pearson Education, Inc. v. Almgren, 685 F.3d 691 (8th Cir. July 13, 2012).  MBA student finds “solution” books to his textbooks on the internet.  After using them, has the bright idea of posing as a professor to obtain more solutions books from Plaintiff publisher.  Obtains the books and sells them on a website earning $5,000.  Publisher, without sending cease and desist letter, sues in New York and engages in scorched earth litigation.  MBA student declares bankruptcy.  Publisher files proof of claim.  Publisher then seeks jury trial on statutory damages and attorneys fees.  Court awards minimum statutory damages and denies attorneys fees.  Statutory damages are declared nondischargeable in bankruptcy.  As a matter of first impression: because bankruptcy is a court of equity, Publisher waived right to a jury trial by filing a proof of claim.  Denial of attorneys fees in toto affirmed.  Publisher could probably have stopped the activity with a cease and desist letter.  Publisher’s “spare no expenses” litigation tactics unreasonable.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Copyright Law - Second Circuit - Is An Implied in Fact Contract Under California Law Preempted By the Copyright Act?

Television Series, Preemption of Implied In Fact Contract To Sell an Idea, Pitching an Idea, Choice of Law, Conflicts of Law

 Forest Park Pictures v. Universal Television Network Inc., 683 F.3d 424 (2d Cir. June 26, 2012).  Forest Park pitched an idea for a television series based on a concierge doctor who made house calls to the rich and famous after being shunned by the medical profession for treating patients without payment.  First pitch was by mail.  Then a follow up meeting and communication.  Then silence.  Just under four years later, USA Network comes out with a show called “Royal Pains” with an identical story premise.  Forest Park sues.  The district court granted USA Network’s motion to dismiss on the grounds that Forest Park’s claim was preempted by the Copyright Act.  On this appeal, the Second Circuit reversed, finding that an implied-in-fact contract under California law is not preempted by the Copyright Act.   Preemption exists where a state law creates a right equivalent to one under the Copyright Act, that is “if it may be abridged by an act which, in and of itself, would infringe one of the exclusive rights” under the Copyright Act.  But there is no preemption where “if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action”.   The Second Circuit’s decision contains an excellent survey of state law claims that have been held to be preempted by the Copyright Act and a survey of sister circuits that have determined that certain contract claims involving copyright are not preempted.  The Second Circuit distinguished between contracts implied in fact and those implied by law.  An implied-in-fact contract is a “true contract” that arises from the tacit consent of the parties.  It is not preempted.  An implied-in-law contract (or unjust enrichment claim) merely requires proof of unjust enrichment and is not different from a copyright infringement claim.  Accordingly, an implied-in-law contract is preempted by the Copyright Act.  Noting a potential conflict between New York and California on the issue of whether a contract may be implied in fact, the Second Circuit applied the “center of gravity” choice of law analysis and found that California law applied.  An important decision worth reading in an area of law that is murky and difficult.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, July 29, 2013

Art Law: Join Me At The Fifth International Conference on Nazi Looted Art October 8-9, 2013

The 5th International Conference on Nazi Looted Art

October 8-9, 2013

Podebrady, Czech Republic

"The West" Versus "The East" Or United Europe?

I have been kindly invited by the Czech government to speak on an panel regarding legal obstacles to the recovery of Nazi-looted art in the United States.  I spoke on an expert panel in 2009 at the Prague Conference on Holocaust-era assets, I have been invited back for the Fifth Anniversary of the Prague Conference. The conference features experts from around the work from museums, archives, not-for-profits and governments who are struggling with issues related to provenance research, archives, and the problem of recovering artworks looted during the reign of Nazi terror.   The conference promises to explore different conceptions of provenance research, documentation and identification of looted cultural assets and the possibilities of the international cooperation in Europe and in the world.  I hope to see you there!"  style="text-decoration: underline;" >Conference Schedule

 For the full brochure online, please click here!
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Copyright Law - Ninth Circuit: Plaintiff With Unreasonable Case Against Filmmakers Hammered On Attorneys Fees

Screenplays, Scenes-a-Faire Doctrine, Attorneys Fees

Gilbert v. New Line Productions, Inc., 2012 WL 2993803 (9th Circuit July 23, 2012).  Attorneys awarded to defendant filmmakers for objectively unreasonable claims made by woman who wrote screenplays about a meddlesome mother-in-law.  No substantial similarity.  Plot lines and standard elements protected by the scenes-a-faire doctrine, which protects elements that flow naturally from standard plot lines.  Attorneys fees appropriate, but remanded for court to explain in detail what rate and time reasonable in a related action where the award did not specify these details.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Friday, July 26, 2013

Copyright Law - Seventh Circuit: Does Kanye West Kill You or Make You Stronger?

Music Copyrights,  Access, Substantial Similarity, Song Lyrics, Motion to Dismiss

Peters v. Kanye West, 692 F.3d 629 (7th Circuit August 20, 2012).  Vince P. gave song “Stronger” quoting Nietzsche to Joe Monopoly.  Monopoly agreed to rep him if a label financed.  Deal fell through.  Less than a year later Kanye West comes out with megahit titled “Stronger” quoting Nietzsche.  Joe Monopoly is a producer on the album.   District court finds the songs not similar, affirms the district court’s dismissal following a Rule 12(b)(6) motion to dismiss.  Lyrics in opinion, good discussion of access.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Wednesday, July 24, 2013

Copyright Law - D.C. Circuit: Copyright Royalty Judges Held Unconstitutional

Copyright Royalty Judges, Appointments Clause of U.S. Constitution, Copyright Rate-Setting, Library of Congress
Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, 684 F.3d 1332 (D.C. Circuit July 6, 2012 rehearing en banc denied August 28, 2012).  Judicial review of Copyright Royalty Judges found to be unconstitutional because it impermissibly gave federal courts legislative powers in violation of Appointments Clause of U.S. Constitution.  The D.C. Circuit eliminated any restrictions on the Librarian of Congress in removing Copyright Royalty Judges as unconstitutional.   With these restrictions gone, Copyright Royalty Judges are properly “inferior officers” of the Library of Congress, subject to the Librarian’s supervision.  Accordingly, judicial review of determinations once constitutional infirmity is cured would be appropriate.  The D.C. Circuit found that, despite past references to the Library of Congress as a “congressional agency,” the Library of Congress is a department of the Executive Branch and thus had the power to appoint and remove Copyright Royalty Judges.  The D.C. Circuit vacated the royalty rate determination challenged by appellant in and remanded for a new finding.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, July 22, 2013

Copyright Law - Eleventh Circuit: Foreign Works and U.S. Copyright Infringement - Don't Cheap Out - REGISTER!

Music, Publication, Publication on the Internet, U.S. Publication, Foreign Publication, Copyright Registration, Foreign Works, Registration of Foreign Works, Motion for Summary Judgment

Kernel Records Oy v. Mosley, 694 F.3d 1294 (11th Cir. September 14, 2012).  Kernel filed a copyright infringement action over a musical work on a Sound Interface Device (SID) that is playable on a Commodore 64 computer or with emulator software.  Plaintiff alleged that the SID was a “foreign work” and thus exempt from the requirement of registration prior to bringing an action in federal court.  The district court granted summary judgment against Kernel, finding undisputed testimony that the SID had been published online and thus a “U.S. work” subject to registration with the U.S. Copyright Office prior to filing suit.  The Eleventh Circuit reviewed the record and found the testimony to raise disputed facts with respect to the method of initial publication and whether such initial publication was only in Australia as claimed by the Plaintiff.   Accordingly, the Eleventh Circuit would have reversed the district court’s ruling as error, except that it found an alternative ground for affirming the district court.  The Eleventh Circuit, in a detailed opinion analyzing what various provisions of the Copyright Act envisioned in determining what works are “U.S. works” for copyright purposes, found that Kernel had failed to meet its burden of showing the foreign publication.  Having failed to meet this burden, its case was “doomed” and should not be given an additional opportunity to gather evidence.  This was so even though Kernel had belatedly registered the work with the Copyright Office after the district court had indicated that it would grant summary judgment, but before it had actually done so.  This is an important case to read for anyone dealing with the question of a work that was published for the first time online since such publication might render an otherwise foreign work a “U.S. Work” for purposes of the Copyright Act.  Practice tip:  even if a plaintiff believes that a work is a foreign work not required to be registered with the Copyright Office, pre-litigation registration would moot many of the issues that had to be litigated in this case and would have saved the plaintiff’s case from failure, at least on this ground.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Friday, July 19, 2013

Copyright Law - Third Circuit: Can Anyone Protect Newark, New Jersey?

Screen Adaptation of a Literary Work, Copyright Infringement, Scenes-a-Faire Doctrine, Motion for Summary Judgment

Jackson v. Booker, 465 Fed.Appx. 163 (3d Cir. February 16, 2012)(unpublished).   Novelist wrote a book “Brick City” published in 1991 about five teenagers in urban housing project.  Newark NJ Mayor Corey Booker was the subject of a documentary from 2007 through 2010 entitled “Brick City” about his real-life attempts to reform Newark.  The Third Circuit reviewed the district court’s grant of summary judgment finding no substantial similarity and affirmed.   Standard situations dictated from an urban environment are unprotectable under the scenes-a-faire doctrine.  Alleged similarities between fictional story and unscripted show not sufficient to show substantial similarity.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Wednesday, July 17, 2013

Copyright Law - Ninth Circuit: Can Celebrities Buy Secrecy?

Celebrity Wedding Photos,  Right of First Publication, Right of Publicity, Fair Use Defense, News Reporting, Motion for Summary Judgment

Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Circuit August 14, 2012).   Latin celebrities get married in secret at Little White House Wedding Chapel in Los Vegas, Nevada.  They manage to keep the wedding secret for three years.  Disgruntled driver/bodyguard takes disk with 400 personal photos including wedding photos to celebrity magazine Maya.  Maya pays driver/bodyguard $1,500.   Maya publishes photos without celebrity permission.  Celebrities register copyrights in photographs.  District court grants summary judgment in favor of Maya based on fair use defense as news reporting.  On appeal, Ninth Circuit reverses in spirited decision analyzing the four fair use factors.  Spirited dissent.  The case is an interesting exploration of the line between permissible use of copyrighted images in news reporting and the rights of copyright holders.  Given the clear newsworthiness of the photographs and the fact that the celebs had misled the public about their marital status, this decision should be troubling to news organizations.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, July 15, 2013

Copyright Law - Eleventh Circuit: What's the Skinny on Thin Architectural Works?

Floor Plans, Architectural Works, Substantial Similarity, Motion for Summary Judgment

Miller’s Ale House, Inc. v. Boynton Carolina Ale House LLC, 2012 WL 6629202 (11th Circuit December 20, 2012). Restaurant operator sued competitor over trademark, trade dress and copyrighted floor plans. District court granted summary judgment to Defendant over copyrighted floor plans. 11th Circuit noted that copyrights in architectural works are “thin” and that standard elements in floor plans are often similarly situated so that differences in architectural works are more relevant than in other copyrighted works. Here the 11th Circuit affirmed the district court’s finding that the differences were “dramatic and overwhelming”.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Friday, July 12, 2013

Copyright Law - Ninth Circuit: Was Raging Bull Asleep At the Wheel? An Unusual Laches Case

Copyright Infringement, Unjust Enrichment, Laches, Equitable Estoppel, Motion for Summary Judgment, Rule 11 Sanctions, Attorneys Fees

Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (Ninth Circuit August 29, 2012).  Petrella owns renewal copyright in Raging Bull book and two screenplays.    Her father wrote the book and screenplays and died in 1981.  She filed a renewal application in 1991.  In 1998 her attorney wrote to defendants claiming that Raging Bull was an infringement of her copyright.  An exchange of letters was had, ending in 2000.   Petrella filed this action in 2009.  The district court granted summary judgment on the equitable defense of laches.  The Ninth Circuit affirmed.   The Ninth Circuit opined that laches bars a copyright owner’s claim where a plaintiff, with full knowledge of the facts, acquiesces in a transaction and sleeps upon his rights.  A defendant must prove (1) the plaintiff delayed in initiating the lawsuit; (2) delay was unreasonable; and (3) the delay resulted in prejudice.   Plaintiff claimed that she had delayed for personal reasons, together with the fact that the film had not made any money.  The Ninth Circuit analyzed two types of prejudice: expectations-based prejudice and evidentiary prejudice.  The Ninth Circuit focused on the many investments that the producers continued to make in Raging Bull during the relevant time period and found that they had been prejudiced caused by Petrella’s delay.  The Ninth Circuit affirmed the district court’s denial of damages.  The opinion provoked a dissent that pointed out that the Ninth Circuit is the jurisdiction most hostile to copyright owners and out of synch with other jurisdictions.   The dissent reasoned that the majority opinion confounds the doctrine of equitable estoppel with laches and misuses the laches doctrine in a manner that is too broad and vague in a manner not intended by Congress.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Wednesday, July 10, 2013

Copyright Law - Ninth Circuit: Dude, That's My Hawaiian Shirt

Fabric Design, Copyright Infringement, Access, Substantial Similarity, Correcting a Copyright Registration, Supplemental Registration, Invalidating a Copyright Registration, Motion for Summary Judgment

L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. June 13, 2012)(as amended after rehearing en banc).  Fabric designer sues Aeropostale for copyright infringement over shirts made from floral design.  District court grants summary judgment and awards attorneys fees in favor of defendants.  Plaintiff appeals.  Ninth Circuit reverses, finding that sales of 50,000 yards of fabric by L.A.-based fabric wholesalers to fabric converters serving the same L.A.-based Aeoropostale created “reasonable possibility” that Aeropostale had access to the fabric and thus created a question of fact on access for the jury.  Ninth Circuit further finds that although there are differences, the fabrics are both extrinsically and intrinsically similar sufficient to bring the question of fact before the jury.  Differences could simply be explained by cheaper production process and a creative decision by an infringer not to borrow the entire original.  Question for the jury.  The opinion has an excellent discussion of Plaintiff’s quandary when it discovered that its group copyright registration of unpublished works contained two published works.  Plaintiff correctly contacted the Copyright Office and did a supplemental registration to delete the two published works.  The Ninth Circuit held that this error in registration did not invalidate the original registration of the fabric at issue in the case since the error was not one that would have caused the Register to refuse registration in the first instance.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Tuesday, July 09, 2013

Copyright Law - Sixth Circuit: Can A Magazine Display Photos of A Journalist Who Entered A Wet T-Shirt Contest?

Fair Use Defense to Copyright Infringement, Use of Copyrighted Images for News Reporting, Reliance on Advice of Counsel to Avoid Finding of Willful Copyright Infringement, Jury Trial, Proving An Infringer’s Profits for Copyright Infringement, Apportioning Profits to Copyright Infringement, Attorneys Fees for Copyright Infringement, Post-Trial Motion for Judgment as a Matter of Law
Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. August 16, 2012).  Female news reporter goes on vacation to Florida.  Enters wet t-shirt contest.  Gets naked.  Gets photographed.  Photos on internet.   Gets fired or resigns.  Buys copyright in photos to keep them off the internet.  Finds new job. Three years later, Hustler magazine publishes photo without permission of female reporter (and now-copyright holder).  Publication was part of monthly “contest” highlighting sexy news reporter.  Hustler attorney gives written pre-publication opinion to Hustler that publication is covered by fair use defense.  Jury finds infringement and no fair use.  Awards 8.5% of Hustler’s profits for that issue.  Awards reporter attorneys fees.  Analyzing four fair use factors, court concludes that a reasonable jury could conclude that publication was not fair use.  Found that publication harmed market for future publication even though reporter had no intention of publishing.   A number of improper arguments made before jury were cured by the court or were not sufficiently prejudicial to warrant a new trial.  As a matter of first impression, Circuit court clarified that once plaintiff shows gross revenues for an activity reasonably related to publication, burden shifts to defendant to show portion of profits not attributable to infringing activity.  Rejected reasoning of other circuits imposing further burdens on plaintiff.  Thus proof of gross revenues of sales and advertising for entire magazine sufficient to shift burden of apportionment back to defendant Hustler.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, July 08, 2013


I will be speaking at a panel sponsored by the Federal Bar Association in Los Angeles at Latham & Watkins.

Time: 5:30 p.mRegistration: 5:00 p.m.
A moderated panel discussion featuring leading authorities discussing claims to Nazi-looted artworks; the legal and practical obstacles facing claimants of property stolen by the Nazis; and the moral and other issues confronting institutions possessing property against which claims have been made.
Location: Latham & Watkins
355 South Grand Avenue
Los Angeles, CA 90071-1560
Cost: Cost: FBA Members $60 - FBA Non-Members $70
Government Employees: $40
FBA Member Group of 10 $500
Federal Judiciary and one guest - Complimentary
Federal Judiciary - Additional Guests $25
(Parking Included)

For full flyer: StolenArtPanelFlyer.pdf
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Copyright Law - Third Circuit: Employee Can't Walk Off With Source Code

Software, Work-for-Hire Doctrine

Le v. City of Wilmington, 480 Fed.Appx. 678 (Third Circuit, April 24, 2012)(unpublished).  Disgruntled computer programmer working for City of Wilmington registers computer program designed to process traffic tickets with the Copyright Office.  Then leaves the office after removing the program’s source code from the computer.   Then sues for discrimination after being terminated.  Third Circuit affirms the district court’s finding that the computer program was a work-for-hire.  It was created as part of the employee’s duties, it used source code from other Wilmington-owned software and used other Wilmington resources in its creation and testing.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Sunday, July 07, 2013

Copyright Law - Tenth Circuit: Is It Infringement To Repair Hardware That Includes Copyrighted Software?

Breach of Contract, Contractual Damages, Conversion, Post-Contract Damages From Conversion, Preemption of Utah Theft Statute by the Copyright Act, Jury Instructions, Verdict Forms, Expert Testimony, Prejudgment Interest

BC Technical Inc. v. Ensil International Corp., 464 Fed. Appx. 689 (10th Cir. February 7, 2012)(unpublished).  NY company agrees to repair circuit boards.  Utah company sends circuit boards to be repaired.  NY company does not repair and keeps them for three years following the Utah company’s cancellation of the contract and demand for return.  After litigation commenced NY company claims that the repair required illegal copying of copyright-protected software and thus the repair contract was unenforceable.   NY company moved for judgment as a matter of law before and after trial.   Jury found NY company liable for breach of contract and conversion.  Damages award not limited by economic loss rule governing contracts because NY company converted circuit boards for three years after contract cancelled, supporting additional damages.  Utah’s theft statute preempted by the Copyright Act.   Even if repairing circuit boards required engaging in copyright infringement, contract not proven to be illegal and thus was enforceable.  Trial court’s refusal to include jury instruction on finding a contract requiring copyright infringement to be illegal affirmed.  Legality of contract question for court, not the jury.  Expert’s testimony regarding damages flowing from failure to repair circuit boards was sufficiently reliable to be admissible under Rule 702 of the Federal Rule of Evidence.  Weaknesses in testimony due to omissions in applying methodology were properly attacked on cross-examination.  Since jury was free to use its “best judgment” after listening to conflicting testimony on damages and the amount of damages was not sufficiently “measurable or calculable” under Utah law, prejudgment interest was not appropriate.
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Friday, July 05, 2013

Copyright Law - Second Circuit: Brother Not Joint Author

Video, Joint Authorship, Copyright Infringement

Marshall v. Marshall, 2012 WL 6013418 (Second Circuit December 4, 2012)(unpublished summary order).   Brothers not joint authors of video.  Party claiming joint authorship must show (1) independently copyrightable contribution and (2) intent to be joint authors.  Plaintiff established (1) but could not establish that he was considered anything more than an assistant and evidence showed that Defendant had sole authorship and control over all creative aspects.  Award of attorneys fees affirmed because of willfulness of conduct or reckless disregard that his legal theory was incorrect.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Thursday, July 04, 2013

Copyright Law - Second Circuit: Is It Plausible To Work For the New York Yankees?

Copyright Infringement, Assignment of Copyright, Federal Question Jurisdiction, Plausibility of Copyright Ownership Claim, Oral Assignment, Standing to Pursue Copyright Infringement Claim

Buday v. New York Yankees Partnership, 2012 WL 2383308 (2d Circuit June 26, 2012)(unpublished).   Daughter of man who designed NY Yankees logo in 1930’s and revised it in 1947 claimed copyright infringement and non-payment.  The court held that she failed to establish federal question jurisdiction and thus the court lacked subject matter jurisdiction.  Even if jurisdiction existed, the complaint failed to state a claim because, according to complaint, Yankees logo was published with the consent of the author, not “unpublished” as conclusory allegation asserted.   Because 1976 Copyright Act preempted common law in unpublished works, the only possible copyright could be under federal law.  Since the complaint’s facts alleged what the court found to be the only plausible interpretation was a work for hire relationship and proffered no evidence to contradict the work-for-hire relationship, the daughter had no standing.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Wednesday, July 03, 2013

Copyright Law - Second Circuit: DMCA Safe Harbor Under Storm - Was YouTube Willfully Blind?

Video, Streaming, Digital Millenium Copyright Act, Internet Service Provider, Motion for Summary Judgment, Safe Harbors from Copyright Infringement

 Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (Second Circuit April 5, 2012).  District court granted summary judgment holding that YouTube and Google were entitled to DMCA safe harbor protections for broadcasting 79,000 copyrighted videos from 2005 to 2009.   District court held that absent item-specific knowledge of each video triggering a takedown duty, YouTube was entitled to the safe harbor.  On appeal, Second Circuit upheld the standard, but remanded because a reasonable jury could conclude that YouTube had such knowledge.  The Second Circuit also referred the question of potential “willful blindness” for further factfinding.  The Second Circuit made clear that DMCA safe harbors, though, did not depend on monitoring systems being set up and that the DMCA does not create such an affirmative duty to monitor for potentially infringing content.  The issue of whether YouTube had the right and ability to control infringing content was also remanded.   In remanding, the Second Circuit noted that YouTube’s licensing of content to third parties presented “the closest case” for taking YouTube outside the provisions of the DMCA Safe Harbor, but that from the record it was not clear that any such allegedly infringed clips were involved in the third-party licensing transactions.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Tuesday, July 02, 2013

Copyright Law - Second Circuit: Is Giving Music Away For Free Over The Internet Reasonable?

Court-Ordered Valuation of Music Licenses, Performance Rights in Music Copyrights, Wireless Streaming of Copyrighted Content
American Society of Composers, Authors and Publishers v. Mobitv Corp., 681 F.3d 76 (2d Cir. May 22, 2012).  This case involved the efforts of MobiTV, a provider of mobile content, to obtain reasonable royalty rates from ASCAP for a blanket public performance music licensing.  Since ASCAP represents about half of the music copyright holders, it is subject to court decrees known as “consent decrees” as the result of past antitrust litigation.  The consent decree relevant to this action required ASCAP to negotiate and to set a reasonable royalty rate.   The consent decree provides that the Southern District of New York may act as a “rate court” to determine a reasonable royalty rate if negotiations fail.   In this case the Second Circuit affirmed the lower court’s setting a reasonable royalty rate and determining the value of the licensed music based on the rates MobiTV paid to obtain the licensed content, plus any advertising revenues MobiTV received.   The decision is noteworthy because the Second Circuit permitted a measure of the music’s value that permitted giving music away for free for a certain period of time and basing revenues on payments derived from pay-per-subscriber contracts.   ASCAP argued that a royalty based on the price a consumer paid to receive a service provided a better measure of the music’s value.   The courts focused on the difficulty in delivering content in a medium with literally no market for some time and that the fact that additional per-subscriber payments would provide rights holders with greater revenues as the audience grew.  ASCAP sought $41 million for a six year period.  MobiTV argued that $300k was reasonable.  The Court awarded $400k, relying heavily on MobiTV’s expert.  A significant victory for providers of content to wireless devices.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, July 01, 2013

Copyright Law - Ninth Circuit: Copyright As Intentional Tort Against a Shoe Supports Personal Jurisdiction

Personal Jurisdiction, Copyright Infringement, Motion to Dismiss

Washington Shoe Company v. A-Z Sporting Goods Inc., 2012 WL 6582345 (9th Circuit December 17, 2012).  Long-time Arkansas client of Washington Shoe Co. buys Chinese knockoffs of Washington Shoe products.  Sells in retail store in Arkansas next to real Washington Shoe products.  Get cease and desist letter.  Sells knockoffs to thrift store.   Washington Shoe brings suit in Washington State.  District court dismisses for lack of personal jurisdiction.  Ninth Circuit reverses.  Holds that intentional tort is expressly aimed at copyright holder in Washington State.  This is part of a trend of dramatically expanding the concept of personal jurisdiction over defendants in copyright infringement cases who satisfy none of the traditional criteria for long-arm jurisdiction.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here