Legal Blog

ARCHIE MD, INC. V. ELSEVIER, INC.: Court Permits Copyright Claim To Proceed Despite Error In Registration Application

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The U.S. District Court for the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The U.S. District Court for the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information. In 2005, Archie MD, Inc. entered into an Animation License Agreement (“ALA”) with the publisher Elsevier, Inc., under which Elsevier would license Archie’s library of 3-D medical animations for use in its various publications. About two weeks after entering into the ALA, and after Archie had delivered the works to Elsevier, Archie submitted a single copyright registration application for a group of unpublished works. This registration included the work at issue in this case, an animation entitled “Cell Differentiation.” The Copyright Office eventually registered the group of works on August 15, 2005. Continue reading

Update – Ninth Circuit Amends Opinion in Mavrix v. LiveJournal, Clarifying that Websites’ Use of Automatic Content Blocking Software Does Not Weigh Against Eligibility for Copyright Safe Harbor

On August 30, 2017, the Ninth Circuit published an amended opinion in Mavrix Photographs v. LiveJournal, a case which concerns the situations under which social media websites and other internet service providers can be held liable for copyright infringement for content submitted by users. The amended opinion removed language from the original opinion that could have potentially penalized websites that use software to automatically block infringing content by causing them to lose protection under the safe harbor of the Digital Millennium Copyright Act.

The case involved a copyright dispute between a paparazzi photo agency, Mavrix Photographs, and the social media website LiveJournal over twenty photographs posted in the site’s celebrity gossip community, Oh No They Didn’t! (“ONTD”). The photos at issue were submitted by users of the website but were reviewed and approved by moderators before they were publicly posted on the site. The Ninth Circuit’s decision concerned the issue of whether LiveJournal was immune from liability under the safe harbor, which protects internet service providers from being held responsible for infringing content submitted by users if the provider complies with the statute’s requirements.  In its original opinion, the Ninth Circuit remanded the case back to the district court to determine whether the acts of the moderators in screening the photographs and making them publicly accessible can be attributed to LiveJournal under agency principles—an overall result which did not change in the amended opinion.  (CDAS’s blog post on the Court’s original opinion, which was issued April 7, is available here. Continue reading

Discovery Channel Avoids Liability for Reality Star’s Inflammatory Facebook Post (Hawke v. Discovery Communications)

Fans of the Discovery Channel’s survival television programs may be familiar with reality stars Mykel Hawke, previously featured in the channel’s program Man, Woman, Wild, and Mykel’s former military colleague, Joseph Teti, star of Discovery Channel’s Dual Survival. Hawke and Teti were, at one time, friends as well as business partners. The relationship ultimately deteriorated and, in connection with the former friends’ falling-out, Teti took to Facebook, posting inflammatory comments regarding Hawke’s mental health and military service.[1] Hawke responded by e-mailing Discovery Channel executives, stating that Teti had used the channel’s “network, television show, [and] social media page for personal defamation and threats.” While unable to locate any threatening comments posted to the Discovery Channel’s official Dual Survival Facebook page, the channel nonetheless applied a filter preventing any posts to or from the page that referenced Hawke. Continue reading

Sports Humor Site Fends Off Domain Name Claim from “Sports Center” Trademark Owner: ESPN, Inc. v. Will Applebee

Claim No. FA1706001734753 (NAF July 31, 2017)

In a decision highlighting the subtleties of trademark law and claimed “parody” websites, Will Applebee, a lawyer-turned-sports writer, has successfully defended his sports humor website,, against ESPN’s recent efforts to seize its domain name to protect its flagship brand.

ESPN’s SportsCenter is a popular daily sports news television program that offers breaking news, highlights, and in-depth analysis and commentary on all things sports.  It has also been known to employ elements of humor, especially in its advertisements. Continue reading

The Beatles’ Apple Corps Wins Lawsuit over Ownership Rights to Historic Shea Stadium Concert Footage

On July 26, 2017, the U.S. District Court for the Southern District of New York dismissed a copyright infringement claim brought by Sid Bernstein Presents, LLC (“SBP”) (owner by assignment of the intellectual property rights of the late music and event producer, Sid Bernstein, “Bernstein”) against Apple Corps Limited (a company founded by members of The Beatles) and its subsidiary Subafilms Limited (“Subafilms”), related to the raw, unedited, audiovisual footage (the “Master Tapes”) of The Beatles’ famed 1965 concert at Shea Stadium (the “Concert”).

The facts of the case are as follows:  Bernstein created, produced, and promoted the Concert, which featured performances by The Beatles and several other musical acts.  In this capacity, Bernstein undertook the responsibilities of raising the money for the Concert, renting the stadium, designing and building the stage, hiring the musical acts, hiring security, designing the tickets, and promoting the Concert.  Bernstein also arranged for TV personality Ed Sullivan to introduce The Beatles during the Concert.

Continue reading

Get Smart: Why Cost Cutting Should Not Elevate Forms Over Substance

In 1994, a computer scientists named Nick Szabo—a man many believe to be the creator of Bitcoin—outlined, in a blog post, how the need for corporate counsel would eventually be eliminated and replaced by a concept similar to vending machines. Now, two decades after Szabo’s original post, cutting-edge clients have begun to ask whether legal costs can be cut by Szabo’s so-called “smart contracts.”

In the recent past, artificial intelligence chewed into the legal profession, first through the revolution of e-discovery tools such as Symantec and Exterro, which can search thousands of documents in less than one billable hour, and then through software such as Ross Intelligence, which can research more substantive legal questions. But, while both sets of tools are used to reduce the number of hours that appear on a client’s bill, both are considered additive contributions to lawyers’ effectiveness. Szabo’s “smart contracts,” however aim to make attorneys’ contributions entirely redundant.

Continue reading

#FyreFestival, the Music Festival that Never Was

Fyre Festival Goers Sue Organizers over Luxury Music Festival Turned Nightmare Weekend

Fyre festival, vigorously promoted by “social media influencers” such as Kendall Jenner, Gigi Hadid, and Emily Ratajkowski as a “luxury” music festival with tickets ranging in price from $1,200 to over $100,000 per person, was scheduled to take place over two weekends in April and two weekends in May on the “private” Bahamian island of Great Exuma.  Unfortunately, the festival was not nearly what its promoters were touting: it ended up being, what some described as, a “post-apocalyptic nightmare” resembling a chapter out of the “Lord of the Flies.” The story of Fyre Festival blew up in the press this spring, and is now lighting up the federal court system.

Continue reading

Supreme Court Curtails Patent Holders’ Ability to Enforce Post-Sale Restrictions, Overturning Longstanding Federal Circuit Precedent

(Impression Products, Inc. v. LEXMARK INTERNATIONAL, INC.)

In a nearly unanimous opinion, the Supreme Court recently limited the rights of patent holders to enforce post-sale restrictions on how patented products may be used, reversing a prior decision by the U.S. Court of Appeals for the Federal Circuit.

The case involved a dispute between Lexmark International, Inc., a manufacturer of toner cartridges used in laser printers, and Impression Products, Inc., a “remanufacturer” in the business of acquiring empty toner cartridges from Lexmark’s customers in the United States and abroad.  Impression would refill used cartridges with new toner and resell them in the United States at a lower price than new cartridges available from Lexmark.

Continue reading

Band Not Banned: High Court Finds Unconstitutional Trademark Office’s Basis for Refusal to Register THE SLANTS Trademark

On June 19, 2017, the U.S. Supreme Court handed down its much-anticipated decision in Matal v. Tam, 582 U.S. __ (2017), issuing a ruling that clarifies that the door is open to trademark registration to a new category of trademarks:  trademarks that may disparage others.

The facts that the Court looked at are relatively simple:  The Slants, a dance-rock band whose members are Asian-Americans, sought to register their name as a trademark.  Although the band argued that they chose the name because they were looking to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity, the U.S. Patent and Trademark Office (USPTO) refused to register the mark THE SLANTS on the ground that it was a derogatory or offensive term.  An appeal to the USPTO’s Trademark Trial and Appeal Board failed on similar grounds.  But a further appeal to the U.S. Court of Appeals for the Federal Circuit resulted in this case finding itself before the U.S. Supreme Court:  the majority of the Federal Circuit, sitting en banc, found that the USPTO’s basis to refuse to register THE SLANTS was unconstitutional. Continue reading

Writers Engaged in “Additional Capacities” – Article 14 Basics

WGA writers, particularly as they advance in their careers, often end up engaged in both their capacity as writers as well as in an additional non-writing capacity, such as executive producers.  Article 14 of the WGA Minimum Basic Agreement (MBA) is therefore an important provision to understand for both writers and anyone engaging them; it states that if a writer is engaged in such an additional capacity, but also provides writing services, those services are still covered by MBA and that writer is still entitled to at least a certain level of minimum compensation for writing services.  Without Article 14 of the MBA, it would be difficult to determine what portion of a WGA writer’s time is spent writing, versus (for example) producing, and thus difficult to determine the writer’s minimum compensation.  Article 14 was one of sections of the MBA that was updated as part of the May 2, 2017 three-year revision of the MBA, discussed here. Continue reading

1 2 3 20