Friday, August 30, 2013

Copyright Law - Second Circuit - Can The Prince of Thieves Transform The World's Art For Free?

Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).  

Yes Rasta by Patrick Cariou

The world-famous self-styled “appropriation artist” Richard Prince took original photographs from a book published by French photographer Patrick Cariou, blew the photos up and put paint splashes and excerpt from soft-core pornography on them.  Thirty works were at issue in the case, each with varying degrees of modification by Prince.  The district court found that the works did not qualify as fair use and ordered the works impounded and destroyed.   The Second Circuit rejected as error the district court’s requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original work.”  To qualify as a fair use, a new work must alter the original with new expression, meaning or message.  “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute.  The Second Circuit analyzed twenty-five of the works as fair use and remanded five works for the district court to consider whether the fair use defense applied.  At oral argument, Cariou’s lawyer said that he did not want to destroy the artworks.  The dissent criticized the majority for deciding twenty-five of the works and remanding five, the dissenting judge would have remanded all of the works for reconsideration under the clarified legal standard.

To read Judges Parker, Hall, and Wallace's decision, 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

Wednesday, August 28, 2013

Copyright Law - Ninth Circuit - Can A Successful and Zealous Defendant Get Attorneys Fees?

Attorneys Fees Awarded for Successful Copyright Defense

Basevi v. The Acorn Co., 466 Fed.Appx 641 (9th Cir. Jan. 19, 2012)(unpublished).  Acorn succeed in defending itself against a meritless copyright infringement litigation, winning motions to dismiss and motions for summary judgment.  Plaintiff pointed to Acorn’s overzealousness and refusal to settle, the Court rejected the objections, affirming the lower court’s award of attorneys fees to Acorn.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Copyright Law - Eighth Circuit: Is Making Music Available on A Peer-to-Peer Network Copyright Infringement?

Copyright Infringement, Music Copyrights, Peer-to-Peer File Sharing, Statutory Damages, Injunctions

Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. September 11, 2012).  Record companies sued woman who copied copyrighted music files onto a file-sharing service and made songs available for others to copy for free.  First jury awarded $222,000.  New trial granted because of jury instruction that “making available” sound recordings violated Copyright Act regardless of whether there was actual distribution.  Second jury awarded $1.9 million.  Judge remitted award down to $54,000.  Record companies opted for new trial on damages and got $1.5 million.  On appeal, record companies wanted original $222,000 jury award and a ruling that “making available” a sound recording on a peer-to-peer network violates the Copyright Act, regardless of whether anyone downloads it.  Defendant challenged constitutionality of award and scope of injunctive relief against her.  Held: $220,000 jury award for copying with no profit motive constitutional and not shocking to the conscience.  Record companies’ request for ruling on “making available” right moot, even though district court enjoined Defendant from such activity because injunctions often encompass otherwise legal activities by persons who have shown proclivity to disobey the law and where enjoining only illegal act not capable of monitoring to protect victim.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Tuesday, August 27, 2013

Copyright Law - Fourth Circuit: No Discerning Observer For Architectural Copyrights?

Architectural Works Copyrights, Copyright Infringement, Substantial Similarity

Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, 2012 WL 5447871 (Fourth Circuit November 8, 2012).  Couple wishes to build new home.  Visit model and get brochures.  Builder sends renderings unsolicited.   Months later builder’s representative visits couple’s house under construction and sees plans.  Builder sues couple and couple’s builder and architect for copyright infringement.   District court awards summary judgment based on lack of substantial similarity based on the Second Circuit’s “discerning observer” test.   Fourth Circuit vacates and remands.   Applies “intrinsic/extrinsic” test for substantial similarity.  Extrinsic test is an objective inquiry that scrutinizes external criteria of substantial criteria in both ideas and expression.  Intrinsic test is a subjective inquiry as to whether an ordinary observer in the intended audience would be disposed to overlook them and to regard the aesthetic appeal as the same.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, August 26, 2013

Top 50 Intellectual Property Law Blogs of All Time?

According to Justia's Blawgsearch, the top 50 most popular Intellectual Property Law  blogs of all time:

1. IPKat
2. IPBiz
3. Patently-O
4. Plagiarism Today
5. Patent Docs
6. 43(B)log
7. IP Thinktank
8. Law & Disorder
9. Technology & Marketing Law Blog
10. Recording Industry vs The People
11. William Carleton, Counselor @ Law
12. Chicago IP Litigation Blog
13. Intellectual Property Network
14. Hollywood, Esq.
15. IPWatchdog
16. Likelihood of Confusion
17. The University of Chicago Law School Faculty Blog
18. The Trademark Blog
19. Los Angeles Intellectual Property Trademark Attorney Blog
20. The TTABlog
21. Copyfight
22. Freedom to Tinker
23. Eastern District of Texas Federal Court Practice
24. Copyright Litigation Blog
25. Duets Blog
26. ITC 337 Law Blog
27. Two-Seventy-One Patent Blog
28. The University of Chicago Law School Faculty Podcast
29. Current Trends in Copyright, Trademark & Entertainment Law
30. The Journal of the Business Law Society
31. Clancco: Art & Law
32. Seattle Trademark Lawyer
33. JOTWELL - The Journal of Things We Like (Lots)
34. FOSS Patents
35. Orange Book Blog
36. Patent Baristas
37. Copyhype
38. this WEEK in LAW
39. US Law Watch
40. Tiny TechIP
41. TechnoLlama
42. Excess Copyright
43. LibraryLaw Blog
44. Internet Cases
45. Erik J. Heels
46. Docket Report Patent Infringement Blog
47. Ruling Imagination: Law and Creativity
48. Photo Attorney
49. Furd Log
50. I/P Updates

Thanks to all of you who have helped to put Copyright Litigation Blog on the list.  To follow on Twitter, please go to @raydowd.
 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

Thursday, August 22, 2013

An End To MoMA's Holocaust Denial? German Museums To Research Artworks Looted From Picasso's Dealer Alfred Flechtheim

Life-sized photo in Nazi 1937 "Degenerate Art" Exhibition

Unlike U.S. museums that have refused to disclose or publish evidence on the provenance of artworks in their collections, German museums are collaborating to trace the artworks that were looted from the collection of Alfred Flechtheim in 1933 and to celebrate the dealer's accomplishments.  I have included the full text of the press release below.

Alfred Flechtheim's Famous Nose on Cover of 1932 Nazi Propaganda Magazine

U.S. museums such as the MoMA proudly display artworks stolen from Flechtheim, and have essentially written Flechtheim out of the 20th Century in an effort to promote the supposed artistic acumen of Alfred Barr, the architect of the MoMA's dealings with the Nazi regime and the instigator of MoMA's dubious postwar acquisitions.

Alfred Flechtheim by Rudolph Belling

In reality, Flechtheim had a tremendous influence on the MoMA and Barr. MoMA's early exhibitions spearheaded and championed by Barr recreated and pretty much reassembled exhibitions Flechtheim had already done in Berlin.  Swiss historians long ago published a report finding that Flechtheim and his gallery had been "Aryanized" in 1933.   German museums are slowly doing the right thing in trying to assemble scholarship and untangle the mess created by the Nazi thefts and by unscrupulous art dealers in the post World War II period.  Why can't or won't U.S. museums do the same?  Is it anti-Semitism that leads them to write this great Jewish man out of the history of 20th Century art?  Or is it the knowledge that scholarship will lead to the revelation that Alfred Barr knowingly purchased bargain-basement artworks that he knew belonged to persecuted Jews and artists like George Grosz?

U.S. museums continue to stonewall provenance inquiries or to publish research on their collections.  It is time for Congress to look hard at giving huge tax breaks to institutions that assist tax dodgers to foist stolen art on an unsuspecting public.

If you care about this issue, please read my article in the Rutgers Journal of Law and Religion:  Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops

Check out my earlier posts on Alfred Flechtheim here  I have written more on Alfred Flechtheim in this blog than MoMA ever has, which is a disgrace. 

The MoMA's Glenn D. Lowry:  Keeping Alfred Flechtheim Out of Art History

Press information
Alfred | Art Dealer of the Avant-Garde
Joint exhibition project at 15 museums together with a dedicated website
Press conference:                   09.10.2013, 11.00
Museum Kunstpalast Düsseldorf
Duration of the exhibitions:         October 2013 – February 2014
Go-live date for website:             09.10.2013
The gallery owner Alfred Flechtheim (1878–1937) was a major protagonist in the art scene during the first third of the 20th century. His commitment to the Rhineland Expressionists, the French avant-garde and German Modernism and his support of important artists such as Max Beckmann, George Grosz and Paul Klee made him internationally famous even during his lifetime. The National Socialist regime, however, changed his life and that of his family drastically. Flechtheim had to leave Germany in October 1933. As an art dealer of Jewish extraction he suffered public defamation and, by 1935, had closed his galleries in Düsseldorf and Berlin and transferred the artworks he still possessed abroad, mostly to London, where he died in 1937 at the age of just 59 as the result of an accident. His wife, Betty, committed suicide in 1941 in the face of her imminent deportation. The remaining works of art in their flat in Berlin were confiscated and their whereabouts remains unknown to this day.
100 years ago Alfred Flechtheim opened his first gallery in Düsseldorf on 9 October 1913. His activities as an art dealer have left their mark in numerous museums to this day in the form of major works of art. These works, acquired through his galleries, have made and still continue to make a decisive contribution towards defining the profile of each respective museum. Almost all leading museums of modern art in Germany and abroad have works by Ernst Barlach, Max Beckmann, Heinrich Campendonk, Lovis Corinth, Paul Klee, George Grosz, Oskar Kokoschka, Paula Modersohn-Becker, Wilhelm Morgner, Heinrich Nauen, Max Pechstein, René Sintenis, Edgar Degas, André Derain, Juan Gris, Fernand Léger, Aristide Maillol, Henri Matisse, Edvard Munch, Pablo Picasso or Paul Signac with a Flechtheim provenance in their holdings.
The aim of this project is to trace the path these works of art took before arriving in the museums, their provenance and their sales history from the artist to the dealer and collector. Particular attention is placed on the time Alfred Flechtheim dealt with the works as well as the circumstances under which these were ultimately acquired by the respective institutions.
Participating museums are displaying works of art to the public that have an ‘Alfred Flechtheim’ provenance in the form of exhibitions and presentations of works in their own rooms (see below).
The database generated website provides an overview of the complete exhibition with all works that have a connection to the Galerie Flechtheim and are now in the 15 museums participating in the project.
The exceptional influence Flechtheim had as an art dealer, the abrupt break in his personal biography and the feeling of loss this brought about, as well as the tragic fate of his family, are all reasons for dedicating a project to his life and work.

Database generated website
The database generated website provides background information (title, date, medium, dimensions, time of acquisition and present whereabouts) on the more than 300 works, as well as relevant information on their provenance, a bibliography and description of the works. By logging into the website visitors can search the works according to these criteria and create their own, personal, virtual exhibition tour.
As a result of the ‘Degenerate Art’ campaign numerous works of art acquired through Alfred Flechtheim were confiscated and removed from museums in 1937. Those works that are still missing to this day are also documented on the website.
In addition Flechtheim’s relationship to the artists he represented is also documented in detail. These descriptions in the more than 80 artist/dealer biographies open up the world of Alfred Flechtheim’s galleries and show how varied and unusual the art dealer’s commitment was to Modernist art and the avant-garde. It reveals that Flechtheim was primarily a representative for those artists who were ostracised by the Nazis and whose works were banned to the depots and confiscated in 1937.
The website also addresses the life and work of Flechtheim, how well he was received, the art business and provenance research. For the very first time pictorial material can be seen of unpublished, original correspondence between Flechtheim’s galleries and museums, images documenting the backs of artworks and photographs showing Flechtheim with his art dealer colleagues.
The website will go live on 9 October 2013.

Exhibitions and presentations of works
From 9 October 2013 onwards the museums will jointly be showing works with a Flechtheim provenance from their collections in a total of 14 exhibitions and presentations of works, under the same title: Alfred Art Dealer of the Avant-Garde.
The works came into the various collections along a number of different routes. Some institutions acquired them directly from one of Flechtheim’s galleries, received them as gifts from the gallery or through its intervention. Others arrived at various times as bequests or gifts from third parties. After 1945, purchased works were acquired by other art dealers and private collectors, having either passed through Alfred Flechtheim’s galleries or as a result of arrangements made by him. The works of art presented (paintings, works on paper and sculptures) are marked with a uniform graphic logo and information on their origin and history. This is complemented by a biography on Alfred Flechtheim. 

Alfred Flechtheim enjoyed an international reputation and had an impressive network of contacts. Hermann Lange, a textile manufacturer and collector called him a ‘pan-European’ who furthered relations between Germany and France. The flag at the Park Hotel in Düsseldorf should be flown whenever he was in the city as he brought Parisian air with him to the Rhine. In April 1928, in a publication on the illustrious art dealer entitled Querschnitt durch Alfred Flechtheim to mark his 50th birthday, one article recorded that Flechtheim should always remember the esteem in which he was held as a citizen in his native city. It was however only five years later, in March 1933, that an auction jointly organised by Flechtheim and the Hugo Helbing and Georg Paffrath galleries was violently interrupted by the NSDAP. On his 55th birthday, a hate article was published in ‘Volksparole’ in which a massive, anti-Semitist attack was launched against Flechtheim himself and his artists. In October 1933, one month after the Reichskulturkammer was founded, with the Propaganda Minister Joseph Goebbels at its head, Flechtheim assessed his position as an art dealer with a Jewish background with infallible precision. Having been the subject of vehement public defamation early on, he left Germany and tried to find a foothold once again as an art dealer abroad. He died in 1937 at the age of just 59 in London.
The art critic Paul Westheim who had emigrated to Paris wrote in Flechtheim’s obituary that he had just succeeded in building up a new existence in London and, through his involvement with the Mayor Galley, had staged exhibitions that had been very well received. He paid tribute to him with the words: “Alfred Flechtheim was more than an art dealer; in the time in which he lived, it was an honour for us to see that he was a man who always stood in the front line, a person known to the whole world, about whom the whole world talked.”

Further reading
In 1987, to mark the 50th anniversary of Alfred Flechtheim’s death, a first monographic appraisal of his work by the Kunstmuseum Düsseldorf, now the Museum Kunstpalast, was shown at an exhibition in Düsseldorf and the Westfälisches Landesmuseum für Kunst und Kulturgeschichte in Münster. The first Flechtheim biography by the historian Ottfried Dascher which includes many new details continues in this vein. Due to provenance research carried out by art museums over the past few years and to current public interest – also triggered by requests for information from various museums by his heirs and their representatives – a more complex picture of Alfred Flechtheim’s legacy in the field of culture and the museum landscape in Europe has now been revealed thanks to new findings. To coincide with this project, the Coordinating Office in Magdeburg is publishing contributions from a workshop on Alfred Flechtheim, held earlier on 25 October 2011 at the Institut für Zeitgeschichte, Munich, entitled ‘Kunstraub und Restitution’ / ‘Looted Art and Restitution’. The volume was supplemented by further contributions by provenance researchers and includes cases studies from participating museums.

Exhibition dates:
Kunstmuseum Bonn: 09.10.2013 – 12.01.2014 (online & presentation of works)
Kunsthalle Bremen: 16.10.2013 – 16.02.2014 (online, exhibition & catalogue)
Museum für Kunst und Kulturgeschichte Dortmund: 10.10.2013 – end of March 2014 (online & presentation of works)
Museum Kunstpalast Düsseldorf: 11.10.2013 – 02.02.2014 (online & exhibition)
Kunstsammlung Nordrhein-Westfalen, Düsseldorf: 08.10.2013 – 12.01.2014 (online & presentation of works)
Städel Museum, Frankfurt: 10.10.2013 – 26.01.2014 (online & exhibition)
Hamburger Kunsthalle: 13.10.2013 – 19.01.2014 (online & exhibition)
Sprengel Museum, Hanover: 11.10.2013 – 16.02.2014 (online & presentation of works)
Staatliche Kunsthalle, Karlsruhe: 09.10.2013 – 19.01.2014 (online & presentation of works)
Museen der Stadt Köln / Museums in Cologne: (online)
Museum der bildenden Künste, Leipzig: 12.10.2013 – end of January 2014 (online & presentation of works)
Bayerische Staatsgemäldesammlungen, Pinakothek der Moderne, Munich: 24.10.2013 – 26.01.2014 (online & presentation of works)

LWL-Museum für Kunst und Kultur, Westfälisches Landesmuseum, Münster: 12.10.2013 – 30.11.2015 (online & presentation of works in Kloster Bentlage)
Staatsgalerie Stuttgart: 10.10.2013 – 23.02.2014 (online & exhibition)
Museum Rietberg Zurich: 22.10.2013 – 9.02.2014 (online & presentation of works)
Alfred Flechtheim at the Léger exhibition, Berlin 1928
Photo: Atelier Lily Baruch © The Royal Library Copenhagen

Further information and pictorial material is available from Munich under tel. 089 23805-118 or by e-mailing or in Düsseldorf under tel. 0211 89-96250 or by e-mailing
Tine Nehler
Leitung Presse & Kommunikation | Head of Press Department
Pinakotheken im Kunstareal | Bayerische Staatsgemäldesammlungen
Kunstareal | Barer Strasse 29 | 80799 Munich
T + 49 89 23805-118 | F + 49 89 23805-125

Marina Schuster
Leitung Kommunikation und PR | Head of Communication and PR
Stiftung Museum Kunstpalast
Ehrenhof 4-5 | 40479 Düsseldorf
T +49 211 89-96211 | F +49 211 89-29504
 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

Wednesday, August 21, 2013

7 Copyright Law Audio Downloads

Copyright Litigation Handbook author Ray Dowd’s acclaimed continuing legal education series on copyright law with West LegalEd Center is available for audio download on demand through West Legal Ed Center.  Follow the links below for more about each program.

Ethics and Intellectual Property: GPS For a New Media World, June 6, 2013
This interactive program pin-points ethical pitfalls lawyers need to know when tackling intellectual property issues, including those that have international dimensions. Dowd teams up with Alexandra Darraby, of the Art Law Firm, for this one hour informational to avoid missteps that can lead an attorney into areas that may open up liability for malpractice. If you work in the IP space, this dialogue of tips and how-to’s is for you.

Winning Before You Even Begin: Discovery & Pre-Trial Investigation in Copyright Litigation, February 20, 2013
This one hour CLE program features Ray Dowd, and Dunnington partner Luke McGrath. They provide you with an overview of the phase of copyright litigations from pleadings through the pre-trial order, giving practical strategic advice on how to apply the Federal Rules of Civil Procedure in the copyright context.

Copyright Law 2012: The Year in Review, January 16, 2013
In this one hour program, we look at the past year's copyright cases decided by the circuit courts of appeals. Dowd describes their significance, and what the rulings could mean for you and your clients.

Copyright Litigation: Removal and Preemption, November 28, 2012
The Situation: a client storms in wanting a lawsuit filed over a copyright dispute. What court should it be filed in? Do the claims arise under the Copyright Act or are they really state law claims? If you are not sure, should your complaint plead lots of kitchen sink state law claims? Dowd walks the practitioner through some of the tactical and strategic choices that a litigator faces in understanding the interplay between the federal and state legal regimes. 

Cease and Desist Letters in Copyright Litigation: Pitfalls for Practitioners, October 17, 2012
The situation: a client wants a quick and dirty letter and doesn’t want to pay much for it or think too hard on it. Is this a recipe for a cost-effective settlement? Or will it snowball into a professional embarrassment, with the client getting hit with a lawsuit in an inconvenient forum? Dowd, a seasoned litigator, takes us through the ethical, tactical, and strategic considerations and choices to be considered before a practitioner sends a cease-and-desist letter. 

Copyright Litigation: Preparing the Complaint- Investigation, Analysis and Documentation, July 25, 2012
Dowd takes us through the pre-flight litigation checklist designed to avoid potential pitfalls that may arise before a copyright litigation is launched or when your client is sued. This course covers how to pick the right courthouse, analyze copyright terms, statutes of limitations, and how to get an idea of whether attorneys fees may be available.  

Ethics and Copyright Litigation: What the Practitioner Needs to Know, June 19, 2012
Dowd takes us through the ethical obligations that practitioners undertake in copyright litigation cases. Aside from harsh consequences to clients, attorneys can be sanctioned personally in copyright cases. What sort of investigation is necessary to avoid Rule 11 problems filing a lawsuit and to avoid dismissal of the lawsuit? Copyright litigation has exploded as the world has become digitized. This course will assist you in understanding how to avoid potential minefields.
 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 - Fifth Circuit: Does A Compilation of Photographs Count Only As One Photo?

Copyrights in photographs, Compilations of Photographs, Statutory Damages, Oral License, Attorneys Fees

Cullum v. Diamond A Hunting, Inc., 2012 WL 3206587 (5th Cir. August 8, 2012)(unpublished).  Ranch hand took photos of ranch.  Gave ranch owner CD with photos.  Ranch used photos for website and brochure.  Relationship soured.  Ranch hand demanded use of photos cease.  Ranch continued using photos.   Lower court found oral license for period prior to cease and desist request and awarded only one statutory damages award of $950.  Denied attorneys fees.   On appeal, single award of statutory damages upheld because all images registered with Copyright Office as a compilation and because photos referred to as a “collection” in the complaint.  Denial of attorneys fees affirmed as within the trial court’s discretion after having balanced Fogerty v. Fantasy Inc. factors.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Tuesday, August 20, 2013

Art Law - Stolen Art & Litigating Holocaust-Era Expropriation Claims Panel Featuring Chief Judge Alex Kozinski

Click here to register online!
 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

Monday, August 19, 2013

Is Our Federal Judiciary Being Dismantled by Congress?

Here is a video with testimony before the U.S. Senate of the Hon. Julia S. Gibbons, Federal Defender Michael Nachmanoff, and West Allen, Chair of the Government Relations Committee of the Federal Bar Association.  I serve with West Allen on the FBA's Government Relations Committee and have been part of the FBA's efforts to educate Congress on the impacts of sequestration on the administration of justice.   As we celebrate the 50th anniversary of Gideon v. Wainwright, the U.S. Supreme Court case that interpreted the Fourteenth Amendment to oblige states to provide counsel to the indigent, making the right to counsel a reality for every American, Congress has, in implementing sequestration, defunded this constitutionally-obligated protection.  The reality is that if criminal trials get gummed up because the accused have no counsel, federal judges are not available to hear civil cases that impact justice for private individuals and corporations.  If justice is not prompt and available from U.S. courts, justice has been denied.  Leaving commercial and bankruptcy disputes in limbo negatively impacts American competitiveness by crippling business and investment.   If these issues are important to you, please consider joining the Federal Bar Association, the premier bar association for the federal practitioner.  Any American who cares about the administration of justice ought to watch this video.
 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

Sunday, August 18, 2013

Raymond Dowd a Lawyer With an Unconventional Hero

Don Quixote after his battle with the cat - Gustave Dore

For family, friends, colleagues, judges and adversaries who have always known that I preferred to follow the impossible dreams that arise from reading too many books, an interview with me by Amelia Pang from Epoch Times Raymond Dowd a This is New York: Raymond Dowd a Lawyer With an Unconventional Hero.   Follow Amelia's thoughts on New York @ameliapang29.
 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

Friday, August 16, 2013

Copyright Law - Ninth Circuit - KISS Rockstar Rights of Publicity Preempted?

Preemption, Control of Dissemination of Copyrightable Work, Right of Publicity

Cusano v. Klein, 473 Fed.Appx. 803 (9th Circuit May 8, 2012)(unpublished).   Member of rock band KISS sued rock band for disseminating still and video footage of his performances as a band member in violation of his right of publicity.  District court denied KISS’s motion to dismiss pursuant to California’s  anti-SLAPP statute.   On appeal, 9th Circuit reversed.  KISS’s performances are free speech and a matter of public interest.   Cusano’s right of publicity claims are preempted by the Copyright Act under Section 301 because he seeks to control the reproduction and dissemination of copyrightable work.   This case makes no sense to me since rights of publicity are not equivalent to copyrights, but the opinion is very brief and unhelpful.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Wednesday, August 14, 2013

Top 20 Copyright Law Blogs of All Time?

According to Justia's Blawgsearch, the top 20 most popular Copyright Law Blawgs of all time:

1. IPKat
2. Plagiarism Today
3. Chilling Effects Clearinghouse
4. Recording Industry vs The People
5. Chicago IP Litigation Blog
6. Likelihood of Confusion
7. Copyfight
8. Copyright Litigation Blog
9. Copyhype
10. Technollama
11. Excess Copyright-
12. Internet Cases-
13. Ruling Imagination: Law and Creativity
14. Photo Attorney
15. Hearsay Culture
16. Case Clothesed For Fashion Law
17. eLegal Canton
18. Nolo Presents The Law in Plain English
19. Copyright Intellectual Property, Computer, Internet, E-Commerce Law
20. techblawg

I am surprised that Techdirt is not high on the list, Mike Masnick provides excellent coverage and lively commentary on copyright law, copyright legislation, international treaties and agreements that would affect copyright law and breaks a lot of news there.

Thanks to all of you who link to and share items from Copyright Litigation Blog.  You can also get realtime notice of new posts by following @raydowd on Twitter.
 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 - Eleventh Circuit - Can Prior Infringements Help A Substantial Similarity Claim?

Architectural Works, Copyright Infringement, Substantial Similarity, Evidence, Evidence of Prior Acts
Dream Custom Homes, Inc. v. Modern Day Construction, Inc., 476 Fed.Appx. 190 (11th Circuit April 17, 2012).  District court granted summary judgment finding that no reasonable jury could find substantial similarity in architectural drawings and designs.  The 11th Circuit rejected the appellant’s argument that prior act evidence should be admissible.  Appellant tried to draw the analogy to trademark law where such evidence is admissible to prove likelihood of confusion.  The 11th Circuit observed that prior act evidence even if admissible to prove damages is not admissible to lower the threshold to prove liability.  Rule 404 of the Federal Rules of Evidence excludes prior act evidence to prove character to demonstrate action in conformity with that character.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Monday, August 12, 2013

Southern District of New York Chapter of the Federal Bar Association Wins Presidential Excellence Award

The Southern District of New York Chapter of the Federal Bar Association has been recognized by the Federal Bar Association as one of the nation's premier chapters.  The 2013 Chapter Activity Presidential Excellence Award will be presented at the Awards Luncheon at the FBA Annual Meeting and Convention in San Juan, Puerto Rico September 26-28. This award is a tribute to all of our members of the SDNY Chapter and a recognition of Chapter President Phil Schatz's leadership on behalf of efforts FBA members, our federal courts, and the public at large.

I hope to greet many SDNY Chapter members and members of other FBA Chapters around the country at the FBA annual meeting in San Juan, Puerto Rico and share in the award, the wonderful CLE programs, and beautiful Puerto Rico. You can register here.
If you are an attorney licensed to practice law or a federal judge, please consider joining the Federal Bar Association.  In this time of sequestration, it is all the more important that your voice be heard on Capitol Hill.  If your law school does not have a student division yet, let us know and we will help you set one up.
Ray Dowd
 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 - Sixth Circuit - Plaintiff's Counsel Sanctioned Over $500,000 For Lousy Lawyering

Copyright Infringements, Ethics, Sanctions, Attorney Sanctions, Attorneys Fees

Fharmacy Records v. Nassar, 465 Fed.Appx. 448 February 23, 2012 (February 23, 2012).  This appeal is the continuation of a copyright lawyer’s worst nightmare.  In an earlier appeal 379 Fed.Appx. 522 (6th Cir. 2010), the Sixth Circuit upheld dismissal of a copyright infringement complaint for fraud on the court and imposed significant sanctions on counsel personally.  In this appeal, the district court awarded over $500,000 in attorneys fees against plaintiff and plaintiff’s counsel jointly.  Suffice it to say that plaintiff’s counsel seems to have not focused objections on the matter before the court and wasted firepower on issues that were already law of the case.  This case is a must-read primer on how not to litigate a copyright case and the perils of compounding a bad case or theory by not promptly withdrawing it.
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Friday, August 09, 2013

Copyright Law - Seventh Circuit - Posner Delves Into Bookmarking Homoerotica

Copyright Infringement, Contributory Copyright Infringement, Preliminary Injunction, DMCA Safe Harbor, Social Bookmarking

Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. August 2, 2012)(Posner, J.).  This appeal concerned a preliminary injunction issued against a social networking site called “My Vidster”.  Plaintiff Flava is a producer of videos of men engaged in homosexual acts.  My Vidster permitted users of its service to “bookmark” videos that were behind Flava’s paywall or that had been downloaded by an authorized Flava user and then uploaded to another server.   The Seventh Circuit clarified that it would adopt the Supreme Court’s eBay Inc. v. MercExchange standard for preliminary injunctions in patent law cases.  Accordingly, the Seventh Circuit will no longer presume irreparable harm in considering preliminary injunctive relief in cases where copyright infringement is shown.  As is his wont, Judge Posner delves deeply into the issue of whether My Vidster can be said to be a contributory infringer by making it possible for one person to bookmark a video and concludes that the evidence is not sufficient.    The opinion has a good discussion of the distinction between copying – something Flava was not alleged to have done – and “facilitating a public performance”.  An important opinion to read because of the important debate over which players on the internet should have “safe harbor” protection under the Digital Millenium Copyright Act (DMCA) and which players ought to be more heavily involved in policing content.  Courts adopting the eBay standard will be more skeptical, as Judge Posner is, to claims of massive copyright infringement that are not backed up by solid evidence.
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Wednesday, August 07, 2013

Copyright Law - First Circuit: Are Translations Copyrightable?

Translations of Ancient Texts, Originality,  Substantial Similarity, Derivative Works, Motion for Summary Judgment

Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory, 689 F.3d 29 (First Circuit August 2, 2012).   Monastery is holder of copyright to translations of ancient texts.  Archbiship Gregory copied texts and put them on the internet.  Monastery sued.   Monastery did not lose rights to texts under “general publication” doctrine under the 1909 Copyright Act.  Translations were original and copyrightable.  Use of texts not fair use.  Lengthy analysis of monastic statutes showing that Monastery the true owner.  Translations may be original and copyrightable, despite being derivative of another product that may be in the public domain.
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Monday, August 05, 2013

Copyright Law - Ninth Circuit: Garden Variety Contract Dispute? Or Federal Copyright Action?

Assignments of Copyrights, Declaratory Judgments, Federal Question Jurisdiction, Dismissal of State Law Claims

Frost v. Frederick, 466 Fed.Appx. 604 (9th Cir. January 13, 2012). Plaintiff brings an action that the district court determines to be primarily a garden variety state law dispute over the formation of a contract. The district court declines jurisdiction. On appeal, and noting that even where jurisdiction exists a court may decline a declaratory judgment action, the 9th Circuit vacates and remands for consideration of four factors that the district court must record: 1. Whether retaining jurisdiction will involve the court in a needless decision of state law; 2. Whether the request is a means of forum shopping, 3. Whether dismissal of the claim for declaratory relief would avoid duplicative litigation. Since the district court did not consider all of the factors, including Plaintiff’s assertion that the controversy involved the transfer of copyright property subject to U.S.C. §204(a) and a potentially important question of federal law, the Ninth Circuit remanded for additional findings.
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Friday, August 02, 2013

Copyright Law - Federal Circuit: Reasonable Royalty For Infringing A Sculpture?

Sculpture, Copyright Infringement, Damages, Hypothetical License, Royalties as Damages, Prejudgment Interest

Gaylord v. United States, 678 F.3d 1339 (Federal Circuit May 14, 2012).  Sculptor won judgment against U.S. Postal Service for copyright infringement for issuing postage stamp depicting soldier sculptures installed in Korean War Veterans Memorial.  The Court of Federal Claims awarded sculptor $5,000 in damages and denied prejudgment interest. Sculptor appealed to Federal Circuit.  The Federal Circuit vacated and remanded holding that damages award based only on what Post Office had paid in the past as a license fee was not proper measure of fair market value and that prejudgment interest was available as a matter of law.   The lower court had used a “zone of reasonableness” test for determining the appropriate license fee and accepted the Post Office’s testimony that it had paid from $1,500 to $5,000 in the past as lump sums.  The Federal Circuit found this testimony to be self-serving.  The Federal Circuit looked to reasonable royalties and hypothetical licenses as a more appropriate measure, noting that the Post Office itself re-licensed the infringed images at a royalty of 8% and noted the sculptor’s past history of licensing images at that rate.  The Federal Circuit noted that the lower court erred in only analyzing one side of the negotiating table in determining fair license fees.
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