Infringement Nation
January 22, 2011
No “Catcher in the Rye” Sequels in the USA Anytime Soon
The copyright infringement saga between JD Salinger’s estate and Fredrik Colting related to Mr. Colting's unauthorized sequel to JD Salinger’s “The Catcher in the Rye,” entitled “60 Years Later: Coming Through the Rye” has settled. Famous for being reclusive, this unauthorized sequel provoked JD Salinger to file a lawsuit in 2009 for copyright infringement asserting that the work was an unauthorized derivative work. Fredrick Colting claimed the work was a transformative parody and therefore entitled to protection under the fair use doctrine, and also claimed that the Holden Caulfield character was not entitled to copyright protection. The district court enjoined the work from publication and sale in the United States. The injunction was later vacated by the Second Circuit Court of Appeals and the case was remanded back to the district court for trial. JD Salinger died in 2010, and his Estate and Colting have now agreed to settle. Under the settlement terms that have been made public, Colting cannot distribute any forms of his book in the United States and Canada until JD Salinger's book enters the public domain (which is in 2046).
January 20, 2011
Pink Floyd and EMI Settle Contract Dispute Regarding Floyd’s Digital Distribution
The artistic integrity battle between legendary super-group Pink Floyd, a band known for concept albums like “the Wall,” and its label, EMI, settled recently. The dispute centered around the distribution of the band's albums in the electronic world as well as Pink Floyd's claim that EMI failed to pay royalties for album sales. One of Pink Floyd's claim was that by offering its tracks for sale individually through online outlets, EMI violated Floyd’s “artist integrity” because the tracks were intended to be heard in a particular order.
January 20, 2011
Elvis Presley Enterprises Sues Chrysalis Music Group for Breach of Contract
Elvis Presley Enterprises, LLC is suing music publisher Chrysalis Music Group, Inc. for failure to perform contractual duties “with the utmost care and diligence” and for failure to pay money allegedly owed to Elvis Presley Enterprises. One of the questions at issue involves Chrysalis' obligation to collect receivables from all licensees within the United States and all sub-publishers and licensees outside of the United States. According to Elvis Presley Enterprises, because of Chrysalis’ “astonishing lack of internal controls and related failures” it did not collect the monies due and therefore did not pay Elvis Presley Enterprises what it was owed.
January 19, 2011
Ruyan Investment Alleges Infringement of Electronic Atomization Cigarette Patent
Ruyan Investment (Holdings) Limited owns the patent to an electronic atomization cigarette. It contends that Smoking Everywhere, Inc., Instead, LLC, and BLEC, LLC, infringed or contributorily infringed inventions claimed in its patent. The electronic cigarette allows users to smoke nicotine normally found in cigarettes without tar. The patent asserts that the electronic cigarette is more effective than the more common “cigarette substitutes” like the nicotine patch, mouthwash, or gun because these common substitutes neither absorb nicotine into the blood like regular cigarettes nor do they address the physical habits of a smoker (for example, inhaling and sucking the cigarette).
January 19, 2011
Imageline Sues HP Over Clip-Art Copyrights
Imageline, Inc., has sued Hewlett-Packard Development Company for copyright infringement and allegedly misstating copyright ownership and removing or altering copyright management information. HP's "marketsplash" website allows users to design their own business cards, flyers, brochures or other marketing materials online and then print the materials on their own printers. The site offers a large assortment of logo designs for use in these materials.
January 14, 2011
Associated Press and Fairey Settle Obama “HOPE” Image Dispute
The Associated Press and artist Shepard Fairey, who created the Barack Obama “HOPE” image, settled its copyright infringement suit. Fairey created the red, white and blue poster of Obama that became renowned during Obama's 2008 campaign for President. Fairey claimed that while he traced AP’s photograph, it constituted fair use and therefore he did not infringe on AP's rights. Specifically, Fairey states that his work was “transformative” from the original photo. Such works have traditionally been protected so as to avoid deterring expression which is protected by the First Amendment. Although the financial terms of the settlement are not public, the parties disclosed to the press that they will share the rights to develop "Hope" merchandise and that Fairey will create more works based on other AP photographs in the future.
January 9, 2011
Sending Unsolicited Promotional CDs Constitutes a Transfer of Title for Purposes of First Sale Doctrine
A recent Ninth Circuit ruling has shed further light on the contours on the scope of the first sale doctrine. In the case, record label UMG sent promotional CDs to music critics and radio disc jockeys for marketing purposes. These CDs included sound recordings which UMG has the exclusive right to distribute. Defendant Troy Augusto acquired these CDs from people who received the CD for free and resold them.
January 7, 2011
Retailers Daffy’s and Ross are Sued for Direct and Secondary Copyright Infringement
L.A. Printex Industries, Inc,. a California textile designer and manufacturer, is suing retail giants Daffy’s, Ross and other vendors and manufacturers for copyright infringement and secondary (vicarious and/or contributory) copyright infringement. L.A. Printex alleges that its registered design was misappropriated after it was distributed within the fashion and apparel industry. Daffy’s and Ross were among the retailers that sold apparel with the allegedly similar or identical designs. L.A. Printex also contends that it sent cease and desist letters to the defendants, however they continued to sell apparel with the design at issue. Therefore, L.A. Printex insists defendants’ infringement and secondary infringement was willful and should be subjected to statutory damages under Section 504(c)(2).
January 7, 2011
Impersonating a Celebrity Online Can Lead to Criminal and Civil Penalties in California
It is now a criminal offense to intentionally impersonate a person online, including a celebrity. California Penal Code Section 528.5 was passed last year as a means to deter people from “harming, intimidating, threatening or defrauding another person” through the internet by impersonating someone else. A false social-networking account in a celebrity’s name is likely actionable under this section. Importantly, the harm does not have to be directed toward the celebrity, but any person who views the information. Impersonators may be charged with a one-year sentence and a fine of up to $1000. Victims can also pursue civil relief.
January 4, 2011
A Blizzard Strikes Video Game Auto-Playing Systems: Digital Millennium Copyright Act Liability, MDY Industries, LLC., v. Blizzard Entertainment, Inc.
The Ninth Circuit recently decided MDY Industries v. Blizzard Entertainment, No. 09-15932, which found that massive video game maker Blizzard could prevail on a Digital Millennium Copyright Act (17 U.S.C. § 1201) claim. MDY Industries developed Glider, a software program which automatically plays the beginning levels of World of Warcraft, a multi-player, subscription based videogame developed by Blizzard Entertainment. Glider allows the user to “play” the game, while being away from the computer. The software moves the mouse and pushes keys for the user while it kills characters and collects rewards. However, Glider neither altered the game in any way nor allowed the user to avoid paying a subscription fee.
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