Copyright Cases: Mavrix Photographs, LLC v. LiveJournal, Inc.

Mavrix Photographs, LLC v. LiveJournal, Inc.

 LiveJournal is a social media platform that displays photographs posted by users.  Maverix Photographs sued for copyright infringement of some of its photographs.  LiveJournal raised the defense that it was protected by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).  The district court agreed and dismissed the case on a summary judgment motion by LiveJournal.

Appeal

The appeals court (1) reversed the district court’s decision, instead finding that the safe harbor would apply if the photographs were posted at the direction of users. However, LiveJournal posted the photographs after a team of volunteer moderators, led by an employee,  reviewed and approved them. The court held that whether the photographs were posted at the direction of users depended on whether the acts of the moderators could be attributed to LiveJournal. Disagreeing with the district court, the panel held that the common law of agency applied to the LiveJournal’s DMCA safe harbor defense. Because there were genuine factual disputes regarding whether the moderators were the defendant’s agents, the panel reversed the district court’s summary judgment and remanded the case for trial.

The panel also discussed the remaining elements of the safe harbor affirmative defense. If an internet service provider shows that the infringing material was posted “at the direction of the user,” it must then also show that (1) it lacked actual or red flag knowledge of the infringing  material; and (2) it did not financially benefit from infringements that it had the right and ability to control. The court held that to fully assess actual knowledge, the fact finder must consider not only whether the copyright holder has given notice of the infringement, but also the service provider’s subjective knowledge of the infringing nature of the posts. The court held that to determine whether the defendant had red flag knowledge, the fact finder would need to assess whether it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to the plaintiff’s website was infringing. When assessing the service provider’s right and ability to control the infringements, the fact finder should consider the service provider’s procedures that existed at the time of the infringements and whether the service provider had “something more” than the ability to remove or block access to posted materials. Finally, the panel vacated the district court’s order denying discovery of the moderators’ identities.

Summary based on courts case summary.  Full opinion available HERE.

Court: U.S. Court of Appeals for the Ninth Circuit

Docket: 14-56596

Opinion Date: April 7, 2017

District Court

What does Consideration mean in a Contract?

WhaQuestion for Trademark lawyert does it mean for a contract to be not enforceable because of a lack of consideration?

Answer: In order for a contract to be enforceable, the mutual promises of the parties must be supported by “consideration”. Considerations means each party gives something of value to the other.  The reason that the courts and legislatures generally require some form of consideration is to insure that the promises being made are not merely a casual statement, and accident, or gratuitous – in short – to make sure the people making the agreement really mean it. Consideration looks at whether the parties have assumed an obligation on the condition of an act or forbearance of another. Except in cases of employment matters, Minnesota courts generally do not look at the adequacy of the consideration being offered – only whether some consideration has been exchanged. For written agreements, the court presumes valid consideration. While adequacy of consideration is not usually analyzed, vague or indefinite terms of consideration (including other conditions of the agreement) may invalidate an agreement, unless it is clear from the subsequent actions.

In contracts related to copyrights and trademarks, this mean that things like royalties might be subject to discontinuance if the only thing that it does is to grant a right to use the IP and it turns out the licensor in fact does not have the rights in the first place (assuming the licensor did not know that the rights were invalid). However, if the contract also goes on to provide that the licensor will discontinue use of the rights for their own use, this forbearance may be enough to be deemed adequate consideration to enforce the contract.

Consideration is important as a part of any contract.   When setting up a licensing arrangement it’s important that you evaluate what the parties are exchanging.

You Own Devices Act proposed

You Own Devices Act

Congressman Blake  (R-TX) recently reintroduced to committee H.R.862, You Own Devices Act (YODA), to amend title 17, United States Code.  If enacted, the bill will provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.  https://www.govtrack.us/congress/bills/113/hr5586/text  Expect opposition to come from

Copyright Office Announces Public Roundtable Discussions for Music Licensing Study

From the United States Copyright Office

NewsNet 542
May 5, 2014

The U.S. Copyright Office will hold a series of public roundtables to gather input for its music licensing study. The roundtables will take place in Nashville, Tennessee on June 4 and 5, 2014, in Los Angeles, California, on June 16 and 17, 2014, and in New York, New York, on June 23 and 24, 2014. The roundtables will offer an opportunity for interested parties to comment on the music licensing issues set forth in the Notice of Inquiry issued by the Office on March 17, 2014. Those seeking to participate in the roundtables should complete and submit the online form. Requests to participate must be received by the Copyright Office by May 20, 2014.

The Vivian Maier Dilemma

Vivian Maier (February 1, 1926 – April 21, 2009) was a nanny living in Chicago and New York during the 50’s and 60’s.  She was also a photographer whose work involved sizable numbers of photos taken of street scenes.  She was not publicly recognized as an artist until after her death and upon the discovery/purchase of her storage locker which contained over 150,000 unprinted negative, hundreds of rolls of un-developed rolls, along with a few thousand that had  been printed (leaving open the question of what she wanted produced).  Subsequently, the negatives were acquired by a handful of entrepreneurs, and select works are now being exhibited and sold as prints.  What is left out of this story is that she died largely without funds of her own, and that she died without any heirs.   The storage locker was sold because no one paid the storage fees.  So who owns the copyright in these photos?
Vivian died in Illinois a couple of years AFTER the negatives were sold at the storage auction.  In Illinois, like most states, if something of value is left by a decedent it “escheats” to the state.  However, as no one had ever heard of her as an artist before her death and the discovery and posthumous printing of her work, the photos largely fell through the cracks of the courts and state house.

 

Fast forward to the present and some of the owners of  the negatives  and prints found in that locker are apparently licensing the images under the claim that as the owners of the negatives, they are also the owners the copyright in the works – Appearing on one of their websites is the following:
    All photographs appearing on this website and in the archive of the Maloof Collection are copyrighted and protected under United States and international copyright laws. The photographs may not be reproduced in any form, stored or manipulated without prior written permission from the Maloof Collection.
      From

http://www.vivianmaier.com/frequently-asked-questions/

While some have tried to twist the issue into whether the state should have the rights, in my opinion the issue of whether the state has rights is not really related to the storage locker, but rather to the fact that she died without a will. While it would be sad that she had no relatives to pass ownership to, the ‘escheat’ laws are there to help prevent property from just laying around for the first random person to snatch-up.  The contention that because someone owns the prints and negatives, they also owns the copyright is something of a concern and I think if the state or another reproducer of the negative challenges it, I believe they will lose.  If you remove the fact she has since passed away, I think most artist would be a little pissed if the buyers of their work started making prints. The copyright laws are quite clear that ownership of the physical item is distinct and separate from the intellectual property rights.

 

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