Authors Guild v. Google

After eight years of a trail and the appeals process, on Nov. 14, 2013, U.S. Court of Appeals Judge, Denny Chin, dismissed a suit by the Author's Guild against Google for its’ digital scanning project where they began scanning millions of books and making snippets (not full books) available in its search results. His full opinion can be read here. The Author’s Guild has filed an appeal. The Author's Guild claim is that this scanning alone violates those authors’ copyright. Google's defense -- the one that Judge Chin agreed with -- was that it fell within the scope of Fair Use. Chin says in his opinion that, "...Google Books provide significant public benefits." Section 107 of Title 17 of the U.S. Code determines the nature of Fair Use. Fair Use allows for the use of copyrighted material for a variety of purposes -- education, criticism, research, etc. The most relevant portion of the criterion to be met in this case was...
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Garcia v. Google, Inc.

Garcia v. Google, Inc. “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa.” is the mild understatement of the Appeals court decision in Garcia v. Google, a case rooted in the anti-Islamic “film” that sparked riots in the middle east a few years back. Ms. Garcia was one of the unfortunate soles who was originally hired to act in what seemed like a vanity project of Mark Basseley Youssef. The film project was originally entitled “Desert Warrior” and while it is not clear what it was originally about, what is known is that the footage was reedited and dubbed over with new dialogue. The resulting project was entitled “Innocence of Muslims,” and the reaction to it is thought to have resulted in over 50 deaths. Following the riots and subsequent calls for her death, Ms. Garcia filed eight DMCA...
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Top 10 Lists

I was recently asked by an attorney friend about using the phrase “The Top Ten Reasons…” in relation to a top ten list (á la David Letterman) that she was planning on using in a marketing piece.  This wasn't a comic work meant to mimic the David Letterman version, but rather a serious piece meant to provide useful information regarding estate planning strategies.  So the question to me was whether she could use the “Top Ten List” format without running afoul of Letterman’s intellectual property. My response was that there was a very low probability of risk – the term “Top Ten List” is descriptive and therefore not generally protected by trademark unless it has acquired such distinctiveness that the term is pretty much only associated by one source.  While, in certain contexts it is undoubtedly a very famous list, it is hardly the only place in which you can find people putting together lists of things in quantities of 10. Further,...
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Sometimes They Don’t Quite Get It.

Courts sometime get the right answer for the wrong reason. In a recent case in the US Tenth Circuit (Enterprise Management Limited, Inc. v. Warrick); the court discussed a diagram of a basic idea which was the basis of the defendant copying a similar diagram to explain the same concepts.    While the end result was correct in this circumstance, the reasoning used falls short. Where concepts or ideas are being presented there is a general rule that expression and ideas are sometimes merged and therefore the copying is allowed to not allow the copyright owner to weld exclusive rights to the idea.   The Enterprise Management court articulated this by noting: “In short, the copyright law is not a patent law: it protects the expression of ideas rather than the underlying ideas themselves. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991) (“The most fundamental axiom of copyright law is that no author may copyright his ideas or the...
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France – Where Everyone Has the Right to Privacy

Article 9 of the French Civil Code provides that: "everyone has the right to privacy." A little while back Kate Middleton was spotted (via a long range lens) topless at a private residence in France.  The resulting photos ended up in the French magazine Closer. The ensuing outrage by the British and the French demonstrates an important issue when works of authorship cross international borders: namely, the U.S. expectations of privacy and Freedom of Speech laws are not embraced in the same ways in other nations and cultures. For example, the French maintain some of the strictest privacy laws in world.  These laws leave little room for arguments of news worthiness.  In fact the French go so far as to prohibit "theft of personal image," which can theoretically be used to ban the taking of photos of individuals even in public spaces.  While the U.S. states have many comparable types of laws, the extent of the French laws is illustrated by the...
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Why I Oppose Amending the MN Constitution for Voter ID.

As an attorney, I feel compelled to speak up concerning the proposed Voter Identification Amendment to the Minnesota Constitution.  Putting aside the partisan political aspects of the issue for a moment, this is a bad idea.  Simple ideas sometimes have complex consequences, and in the case of voter id, the simple idea is both expensive and potentially harmful to our most sacred right as Americans. The Minnesota Constitution was enacted in 1857.  Generally speaking, amendments to constitutions are made to accomplish things that cannot be done through the legislative process.  Unfortunately, this is not always the case in MN and the Voter Id Amendment is a prime example.   In the case of the Voter Id Amendment, some Legislators decided they had a law they wanted to pass, and rather than working the law through normal legislative channels which require the checks and balances of Executive Branch approval and judicial oversight, they are seeking to circumvent and embed the administrative practice of...
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Of Flesh Eaters and Copyright

Of Flesh Eaters and Copyright

Have you ever seen Night of the Flesh Eaters?   Probably, though you probably know it as the 1968 classic Night of the Living Dead.  Now ask yourself why have you seen it (besides it being a fun little romp about zombies) – because it has been pervasively shown on broadcast television and other media for decades.   While we now view this film as a classic and all that air play is only respect to the genre defining classic, when it came out it was simply a B movie.  The reason it received so much initial air time, however, probably had more to do with the formalities of copyright than the artistic vision of George A. Romero and John Russo. Up until March 1, 1989, in order to maintain a copyright in a work a notice of copyright was required somewhere on the work – in films this usually consisted of a listing on the title card showing the copyright symbol, the...
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Uncle Fester and Justin Bieber

Well before before Uncle Fester shaved his head and joined the Addams Family, the actor Jackie Coogan was appearing in silent film alongside Charlie Chaplin.  Unfortunately for Jackie, his parents spent all the money from his work and when he  turned 18 he had little to show for his time on stage and screen.  The spectacle  of a child star of Coogan's stature being exploited in that way led to a California Law requiring that child performers be paid in such a way that around 15% of their pay is automatically placed into an untouchable trust fund that only they will be able to access when they turn 18 - many states around the country now have similar laws and they are typically referred to as Coogan Laws.  It is estimated that Bieber is worth around 100 million dollars.  While its impossible to know how much of that is held in a Coogan Trust, it is likely that upon his...
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Linsane Trademarks

Linsane Trademarks

Since February 7th the Trademark office has received eight trademark applications for the term LINSANITY.   The products identified in applications range from clothing, jewelry, and sport drinks, to eyeglasses and cell phone covers.  The only problem is only one of these applications is on behalf of the Knick's Jeremy Lin (Serial 85541426); and it is a basic premise of trademark law that you can not register the name of a living person without that person's written consent.  Perhaps more concerning, however, is the attempt of people who know him to cash in on his name - one of the applications is by Roger Montgomery for the purpose of "Business management of sports people" (Serial 85542514) and who the Washington Post identifies  as Lin's own agent. While some of the applicants may try to argue that it is purely coincidental that they want to register the name in the middle of Mr. Lin's hot streak ("by Linsanity, I mean LENS...
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The Copyright Dilimma for Pinterest

The Copyright Dilimma for Pinterest

In case you’ve been living under a digital rock, one of the currently hot internet properties is pinterest.com. Pinterest is a social media platform that allows users to skim pictures from third-party websites and to post them along with a link back to the original website that the image originally appeared on – sort of like a much more streamlined & robust method of saving bookmarks/favorites.   Unlike Facebook or some of the other social media sites which encourage users to come-up with their own content, Pinterest is largely based on a model of users creating collections of photos from third-parties. This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website.  Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.”   This is similar to the...
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