Fair Use
February 28, 2012
Politicians and Music: The Wars Go On
Republican presidential candidate and former speaker of the house Newt Gingrich finds himself facing copyright infringement charges over his campaign’s use of song “Eye of the Tiger,” which is the theme song to the movie “Rocky III.” Photo Courtesy of Felinest, Creative Commons
February 2, 2012
Will the Supreme Court Review the Ninth Circuit’s Copyright Misuse Decision?
Several weeks ago, Psystar filed certiorari to ask the Supreme Court to review the Ninth Circuit’s analysis of its copyright misuse defense. Psystar is a computer manufacturer that sells computers which use Apple’s operating system software, OS X. In 2009, Apple, Inc., prevailed on a copyright infringement claim against Psystar and also successfully convinced the district court for the Northern District of California that Psystar’s copyright misuse defense should not stand. The district court decided these issues on summary judgment. Psystar did not appeal the district court’s finding of copyright infringement. However, it did appeal the court’s ruling on the copyright misuse issue.
December 9, 2011
Priorities and Special Projects of the Copyright Office for the Next Two Years
The U.S. Copyright Office just released its priorities and special protects for the next two years in the areas of policy and administrative law. Some highlights are: Treatment of Pre-1972 Sound Recordings, Mass Book Digitization and Rogue Websites.
December 4, 2011
Sam Francis Files Class Action Suit against Art Galleries under California’s Resale Royalty Act
In 1976, Governor Jerry Brown signed into law the Resale Royalty Act, which allows artists to profit from the resale of their visual works in secondary markets. According to the statute, if the artist is a U.S. citizen or California resident for at least two years at the time of resale, if either the seller resides in California or the sale is held in California, and if the work is valued at over $1000, then the artist is entitled to a 5% royalty of the sale price. If the sale price depreciates in value, the artist is owned nothing. When a reseller cannot locate the artist, it is required to transfer the royalty payment to California’s Art Council. The concept that artists should profit from the appreciation of their visual works is called droit de suite, which was borrowed from French law and adopted into the European Union. California is the only state to recognize resale royalties to visual artists.
October 3, 2011
The Authors Guild Sues Universities that Digitally Distribute Works for Copyright Infringement
The Authors Guild sued University of Michigan, the University of California, the University of Wisconsin, Indiana University, Cornell University, and Hathitrust, a partnership between more than fifty institutions that combines works in a shared digital repository, for copyright infringement. The Authors Guild contends that this digital database “risk[s] the widespread, unauthorized and irreparable dissemination” of the works. The main issue of the case will be whether Hathitrust and the other defendants are protected by fair use or whether their actions go beyond the allowances made for such institutions in the Copyright Act.
August 12, 2011
Yves Saint Laurent vs Louboutin: A New York District Court Orders No Preliminary Injunction Against Yves Saint Laurent and Puts Louboutin’s Red Sole Trademark in Jeopardy
A district court for the Southern District of New York denied Christian Louboutin’s motion for preliminary injunction against high-end shoe competitor Yves Saint Laurent for Lanham Act violations. Louboutin shoes are well known for their red soles, which “[f]ilm stars and other A-list notables equally pay homage” and often cost as much as $1000 a pair. Even though “the red outsole became closely associated with Louboutin” and the United States Patent and Trademark Office granted Louboutin a trademark registration for the color as part of a “lacquered red sole on footware” mark, the Court decided that color, in this context is aesthetic and does not act as a source identifier.
August 1, 2011
Guilty Until Proven Innocent: The Copyright Alert System and the Threat to Fair Use
Few would deny the controversy surrounding online piracy facilitated by peer-to-peer (p2p) file sharing websites. Various studies indicate that online piracy harms the United States economy to the tune of billions of dollars a year, and efforts by private parties to address this issue have proven futile. For example, the Recording Industry Association of America (RIAA) sued thousands of alleged online copyright infringers from 2003 to 2008, but abandoned its litigation strategy in 2009 because it appeared to have little, if any, effect on internet piracy.
October 12, 2010
Fair Use and the Myth of Aesthetic Neutrality, Part III
A revealing contrast emerges when one considers the ultimate outcome of The Wind Done Gone suit—which effectively excommunicated Gone with the Wind from the category of sacred text—to the more recent controversy involving the unauthorized send-up of The Catcher in the Rye, entitled 60 Years Later: Coming Through the Rye and purportedly authored by one John David California. In 2009, shortly before his death, J.D. Salinger came out of hiding, at least legally speaking, to seek an injunction restraining publication of 60 Years Later on the grounds that it constituted a blatant infringement of his copyright. The defendant objected, claiming fair use and First Amendment protection.
October 1, 2010
Fair Use and the Myth of Aesthetic Neutrality, Part II
In the first suit we examine, Suntrust Bank v. Houghton Mifflin Co., 136 F.Supp.2d 1357 (N.D. Ga. 2001), the estate of Margaret Mitchell sued to enjoin publication of Alice Randall’s The Wind Done Gone, on the grounds that it constituted an unauthorized derivative work based on Gone with the Wind. The main conceit of Randall’s novel was its recasting of the Gone with the Wind story and world from the point of view of the African-American slaves and mulattos rather than the white aristocrats. In Randall’s work, Ashley Wilkes is gay, interracial sexual relationships are discussed, and the travails of daily life for the victims of the South’s rigid and racist social hierarchy are vividly depicted.
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