Professional Documents
Culture Documents
Star Athletica TEST - a feature incorporated into the design of a useful article is
Cheerleader uniforms designed by Varsity
CR'able only if:
Brands copied by Star Athletica; does CR "(1) can identify the decorations as features having PGS qualities
(1) can be perceived as a 2D or 3D work of art separate from the useful article, and
protect the particular combo of chevrons, (2) if the arrangement of colors, stripes, and chevrons were separated
(2) would qualify as a protectable pictorial, graphic or sculptural work (either on its
PGS Separability Star Athletica, LLC v. Varsity zigzags and stripes that characterizes from the uniform and applied in another medium (for example, on a
Subject Matter SCOTUS 2017 own or fixed in some other tangible medium of expression) if it were imagined
("Useful Articles") Brands, Inc. Varsitys uniforms? Star Athletica argues painters canvas) they would qualify as 2D works of art. And imaginatively
separately from the useful article into which it is incorporated
industrial design largely influenced by removing the surface decorations from the uniform and applying them in
utilitarian considerations does not another medium would not replicate the uniform itself."
If designs hav[e] . . . graphic . . . qualities . . . [that could be] applied . . . on
warrant CR protection
a painters canvas, then the test for CR'ability is met!
Trinity Theatre claims joint Au'ship of De Minimis TEST - only combined product must be CR'able; joint Au's contribution
Authorship
Joint Erickson v. Trinity Theatre 7th Cir. 1994 Erickson work bc actors contributed to must be "more than a word or a line"
(Ownership)
development of the play - Ct says NO! This discourages collaboration!
- each Au's' contributionmust be CR'able
- more predictable
Cherry Auction is both vicariously and contributorily liable (Evidence of at-will ability Vicarious:
to terminate a tenant supports a finding of right and ability to supervise) - Legal Right + Practical Ability (to Control)
- Direct financial benefit
Vicarious Liability,
Fonovisa (Latin music recordings) v. swap - VICARIOUS - even in the absence of an employer-employee relationship one may - No knowledge of specific instances requirement
Infringement Contributory Fonovisa v. Cherry Auction 9th Cir. 1996
meet (vendor booth fair) be vicariously liable if he has the right and ability to supervise the infringing activity
Infringement
and also has a direct financial interest in such activities" Contributory:
- CONTRIBUTORY - one who, with knowledge of the infringing activity, induces, - Knowledge
causes or materially contributes to the infringing conduct of another - Induces or materially contributes to
No affirmative duty for ISPs to monitor sites (3P websites posting infringing
ISPs w/ knowledge of specific instances have an obligation to take
thumbnails and images)
affirmative steps to remove content
Vicarious Liability,
Google indexed thumbnails of Perfect 10s
Infringement Contributory Perfect 10 v. Amazon 9th Cir. 2007 - CONTRIBUTORY - Ct remands for factual inquiry into whether Google had
models and linked to full-size displays CONTRIBUTORY - ISPs knowing failure to prevent infringing actions
Infringement reasonable and feasible means for limiting access to infringement
can create liability; computer system operators with actual knowledge
- VICARIOUS - Google does not contract with image posters, and filtering technology
may be liable
is not available; advances in filtering tech could create liability!
(1) SAT is not transformative and therefore not a parody (if anything, the SAT is
more of an homage)
Cultural Castle Rock Entertainment v.
Fair Use 2d Cir. 1998 Seinfeld Aptitude Test (S.A.T.) (2) work was fictional, pub'd
Interchange Carol Publishing
(3) infringement was substantial (Qualitative & Quantitative)
(4) market effect was clear - is a market Seinfeld might want to enter
Ct rules in favor of Google on the merits of its significant transformative use against
Perfect 10s hypothetical mobile phone use
(1) purpose - highly transformative; indexing for search; favors Google, outweighs
Google indexed thumbnails of Perfect 10s
Fair Use Technology Perfect 10 v. Amazon 9th Cir. 2007 superseding mobile phone and commercial use
models and linked to full-size displays
(2) nature - images are creative in nature; slightly favors Perfect 10
(3) substantiality - entire photo must be copied for use; neutral factor
(4) effect on market - thumbnails may be used on mobile phones, but impact is
hypothetical; neutral factor
DISSENTS:
Eldred maintained a website of public Ct holds CTEA complies with the limited times clause; also is rational in order to - J. STEVENS - Congress has failed to protect the public interest in free
domain works; sued on grounds that the comply with the Berne Convention and in light of demographic [e.g. longevity], access to the products of inventive and artistic genius
Due Diligence Duration Eldred v. Ashcroft SCOTUS 2003
1998 Copyright Term Extension Act economic, and technological changes - J. BREYER - [rational basis review] (1) extended term benefits are
(CTEA) was unconstitutional - extended CR is generally compatible with First Amendment private, not public; (2) threatens to undermine expressive values of
copyright; (3) unsupported by objectives in IP clause
Ct holds that the Schoenberg test is too vague and not in accord with fed jx; reaffirms
Bassett wrote a movie about the Pequots; T.B. Harms test as appropriate, and finds that Bassetts claim falls under 1388 (SMJ) Schoenberg (2d Cir., 1992) TEST for CR/K claims:
Bassett v. Mashantucket the Pequots terminated contract and (1) is claim merely incidental to CR?
Litigation Jurisdiction 2d Cir. 2000
Pequot Tribe produced a version of her movie w/o T.B. Harms (2d Cir., 1964) TEST: (2) does the complaint allege a breach of K licensing/assigning the CR?
permission a suit arises under the CR Act if (1) the complaint is for a remedy expressly granted (3) is the breach so material as to create a right of recission?
by the Act, OR (2) the complaint asserts a claim requiring construction of the Act
In 9th Cir., must (1) demo "real and reasonable" apprehension that will be subject
Au of book re: James Joyce's daughter; to liability if continues to mfr the product that (2) caused by its actions
threatened with CR suit by Joyce Estate; - Ct holds that Au has real and reasonable apprenehsion of CR liability that caused
material that arguably should have fallen by their actions
Litigation Standing Schloss v. Sweeney N.D. Cal. 2007 under the aegis of fair use was stripped
from the book; Au created electronic " does not need to being distribution of potentially infringing product to have
supplement to book to house potentially controversy ripe for declaratory judgment adjudication"
infringing material - product presented to the court must be the same product that will be produced if
granted declaration of noninfringement
Petrella died in 1981, renewal rights equitable defense of laches is not available to CR s in claims for damages
reverted to his heirs (Stewart v. Abend); - laches cannot be invoked as a bar to pursuing a claim for damages brought w/in
equitable defense of laches is not available to CR s in claims for
Litigation Timing Petrella v. MGM SCOTUS 2014 daughter managed to renew screenplay & 507(b)s 3-yr window
damages
sued MGM for "Raging Bull" movie - in extraordinary circumstances, laches may, at the very outset of litigation, curtail
(exploitation of derivative work) the relief equitably awarded
Feltner's TV stations running shows (but
Feltner v. Columbia Pictures if there is to be an award of statutory damages in a CR infringement case,
Litigation Timing SCOTUS 1998 delinquent on royalty payments so license
TV then the opposing party has the right to demand a jury trial
revoked); Columbia sue Feltner
SECTION TOPIC CASE CT YR FACTS HOLDING NB
Ct holds that refraining from injunction is consonant with the CR Acts remedial
scheme and does not amount to compulsory license .'. Galloway retains the right to
sell his house
(1) irreparable injury often derives from the nature of CR violations insofar as they Ebay (US, 2006) factors:
Galloway built a retirement home from deprive the CR holder of exclusive rights - win (1) irreparable injury
Remedies Christopher Phelps &
Litigation 4th Cir. 2007 Phelpss plans without permission; Phelps (2) damages are usually inadequate to remedy CR violations and would entail a (2) damages are inadequate to compensate
(injunction) Associates v. Galloway
seeks to enjoin future sale of the home substantial amount of speculation and guesswork - win (3) balance of hardships favors injunction
(3) injunction against sale would neither undo the prior infringement, nor diminish (4) public interest would not be disserved by a permanent injunction
the chances of future copying, and would be a comparatively draconian burden
insofar as has a substantial interest in living in and selling his house - win
(4) injunction would punitively undermine an ancient reluctance by the courts to
restrain the alienability of real property, disserving the public interest - win
Liability fordecentralized P2P file-sharing Ct rejects MAI approach - skeptical that all infringement is irreparable and can
MAI (9th Cir., 1993) rule as an alternative to Ebay - a permanent
Remedies service (e.g. Kazaa, Morpheus) premised support a presumption of injunctive relief
Litigation MGM v. Grokster N.D. Cal. 2007 injunction will be granted when liability has been established and there is
(injunction) on objective promotion or inducement of - but in this particular case, there is a showing of irreparable harm, and an injunction
a threat of continuing violations
infringement is granted under Ebay
Preliminary Injunction (4 factors):
(1) that the is likely to succeed on the merits,
9th Cir. (in accord w/ 2d Cir.) decided that finding likelihood of success on the
Remedies (2) that is likely to suffer irreparable harm in the absence of
Litigation Perfect 10 v. Google 9th Cir. 2011 [same issue as Perfect 10 v. Amazon] merits NO longer automatically leads to a finding that the would suffer irreparable
(injunction) preliminary relief,
harm if an injunction is not granted
(3) that the balance of equities tips in favor, and
(4) that an injunction is in the public interest
direct profits - modifies lower court award as clearly erroneous; Act IV was
MGM used parts of Kismet (MGM's
essentially Kismet and plaintiffs contribution should be set at 75%
Remedies motion picture based off of a musical
Litigation Frank Music v. MGM 9th Cir. 1989 indirect profits - upholds lower court award of 2% of total casino operations
(damages) drama) w/o license in a MGM Grand
prejudgment interest - remands to lower court to enter an award of prejudgment
musical revue "Hallelujah Hollywood"
interest, which should ordinarily be awarded consistently with the Act
Evenhanded approach - s and s are to be treated alike, but attorney's fees are
Fogerty wrote a song and then sold the only awarded based on equitable discretion Other approaches:
rights to it to Fantasy; Fogerty later wrote - "Equitable discretion" isn't a precise rule or formula, but there are many - Dual standard - prevailing s were generally awarded fees as a matter
Remedies
Litigation Fantasy v. Fogerty 9th Cir. 1996 a similar song and Fantasy sued for CR considerations that could be used to make the determination of course, while prevailing s had to show that the original lawsuit was
(attorney's fees)
infringement (Fantasy was accusing - FACTORS (non-exclusive) - "frivolousness, motivation, objective unreasonableness frivolous or brought in bad faith
Fogerty of plagiarizing himself!) (both in the factual and in the legal components of the case), and the need in - British rule - prevailing party automatically receives fees.
particular circumstances to advance considerations of compensation and deterrence"
An award of atty's fees to the prevailing party in a CR action is left to ct
Remedies Positive Black Talk v. Cash Applies Fogerty factors re: 505 to find that lower ct did not abuse discretion in
Litigation 5th Cir. 2004 "back that ass up" v. "back that azz up" discretion but "is the rule rather than the exception and should be
(attorney's fees) Money Records finding that s were not entitled to atty's fees
awarded routinely"
Gagnon developed custom software for
3 prongs were upheld! 3 prongs for implied license:
AMS through a technical service
Transfer Asset Marketing Systems v. - especially wrt to (3) - Gagnon granted AMS an unlimited, nonexclusive license to (1) did the licensee request the creation of the work?
Contract 9th Cir. 2008 agreement; dispute arose over the
(Implied License) Gagnon retain use, and modify the software (2) did the licensor deliver it to the licensee?
assignment of rights to the software once
- bc consideration was paid, license was irrevocable (3) did the licensor intend that the licensee copy and distribute the work?
agreement ended
NYT, in licensing back issues of the newspaper for inclusion in electronic databases
such as LexisNexis, could not license the works of free-lance journalists contained in
LexisNexis case; NYT argued that
the newspapers
submission of articles to the Lexis
Transfer DISSENT:
Contract New York Times v. Tasini SCOTUS 2001 database constituted a revision under
(Revision Privilege) - database is not a revision, but like a new form of library in which all individual transfer of NYT issue into a collection of files constitutes a revision
201(c), allowing NYT to maintain
articles are available
ownership in the new medium
- NYT is liable for infringement by submitting the articles to be published in an
entirely new form
Napster brings suit in regard to a Antitrust violations can give rise to copyright misuse if those violations offend the
restrictive contract it entered into with public policy behind the copyright grant (Lasercomb)
In re Napster Copyright must establish a nexus between the anticompetitive actions and the 's
Contract Misuse N.D. Cal. 2002 MusicNET (prevents Napster from - wrt Napsters motion for further discovery, Ct holds that Ks raised "specter of
Litigation power over the material
obtaining individual licenses from possible antitrust violations" related to CR market power dominance
MusicNet competitors) - Napster can proceed
hackers argue:
Violated 1201(a)(2)
(1) CSS did not effectively control access bc they were able to break it;
Hackers created DeCSS to break Ct says "whether or not it is a strong means of protection doesn't matter
(1) that computer programs are protected speech, but does not decide on 1Am. issue
Technological Access v. Copy Universal City Studios v. encryption on DVDs; argued did not (2) the created DeCSS within the meaning of 1201(f) (reverse
SDNY 2000 with DVD copying
Protections Protection Reimerdes violate DMCA and that DMCA violates engineering for interoperability); Ct says neither of the s . . . was
(2) there may be no... liability for linking to a site containing circumvention
1Am. involved in good faith encryption research
technology... absent clear and convincing evidence that: (a) knows the tech is on the
(3) fair use; Ct says that Congress has essentially prohibited fair use of
site, (b) knows the tech is illegal, AND (c) Dintends to distribute it"
encrypted copyrighted material through the DMCA