Copyright

The Good, the Bad, and the JPEG Staying Safe in the Constant Showdown over Digital Content Use Online

The ABA Section of Intellectual Property Law’s magazine Landslide published Scott J. Sholder and Lindsay R. Edelstein’s article “The Good, the Bad, and the JPEG Staying Safe in the Constant Showdown over Digital Content Use Online.”

The article is a how-to guide to prevent and defend against copyright troll claims. View Article

 

 

Ninth Circuit Provides Valuable Guide to Obtaining Copyright Protection for Customer Data

(Experian Information Solutions, Inc. v. Nationwide Marketing Services Inc.)

Those familiar with copyright law recognize the well-established principle that facts are not eligible for copyright protection. A compilation of facts may be eligible, however, if the selection or arrangement of facts reflects the requisite originality and creativity to warrant copyright protection. In Feist Publications v. Rural Telephone Service Co., the U.S. Supreme Court considered whether a compilation of facts in the form of a directory of customer names, addresses, and telephone numbers is eligible for copyright protection; the Court ultimately determined that the directory at issue, which merely listed all of Rural’s telephone subscribers in alphabetical order, lacked sufficient originality and creativity to be copyrightable. In a recent case, however, the U.S Court of Appeals for the Ninth Circuit determined that a similar list of customers could be – and indeed was – eligible for at least some level of copyright protection.

Experian Information Solutions, Inc. v. Nationwide Marketing Services Inc. focused on what plaintiff Experian – an information services company best known for credit scores and reports – terms its “ConsumerView Database,” or “CVD.” The CVD contains more than 250 million records, each pertaining to an individual consumer, and includes hundreds of data fields, including age, income, and purchase habits. Experian licenses portions of the CVD to various marketing companies for use in connection with marketing campaigns. Continue reading

Lombardo v. Dr. Seuss Enterprises, L.P.: Parody Hasn’t Outgrown Fair Use

On July 6, the U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s finding of fair use in Lombardo v. Dr. Seuss Enterprises, L.P., reiterating the protected nature of parody under the fair use doctrine even as it applies to some of the most beloved properties in entertainment – including children’s literature.

As a brief reminder of the facts, Lombardo was a copyright infringement case involving a parody of Dr. Seuss’ classic story How the Grinch Stole Christmas! The dispute centered around playwright Matthew Lombardo’s Who’s Holiday!, a one-actress play about a 45-year-old Cindy-Lou Who, the toddler-protagonist of the original story. Having long since “outgrew” her “no more than two”-year-old days and her wholesome, unflappable belief in the magic of Christmas, the play picks up where the Dr. Seuss tale left off: Cindy Lou has entered a turbulent marriage to the Grinch, borne his child, survived his untimely death, turned to drink and drugs, been incarcerated, and lost her daughter to foster care. A dark turn for Ms. Who, to say the least. Continue reading

Close v. Sotheby’s: Federal Copyright Law Preempts California State Law on Downstream Artist Royalties

The U.S. Court of Appeals for the Ninth Circuit this month held that the California Resale Royalties Act (“CRRA”) – a state statute that provided visual artists with ongoing downstream royalties for sales of their works occurring after the initial sale – is invalid as preempted by federal copyright law. The court, in Close v. Sotheby’s, — F.3d –, No. 16-56234, 2018 WL 3322222 (9th Cir. July 6, 2018), decided that visual artists are barred from receiving any ongoing royalties arising from later sales of their work due to the federal “first sale doctrine.” The decision affirms the U.S.’s long-held perspective on the limited nature of certain copyright privileges.

The provision of the CRRA at issue in Close granted artists an un-waivable right to 5% of the proceeds on any resale of their artwork under certain circumstances. Specifically, the CRRA required the seller of a piece of artwork (or the seller’s agent) to withhold 5% of the resale price and pay it to the original artist, or if the artist cannot be found, to the California Arts Council. The purpose behind the statute was to help visual artists capitalize on the appreciation of their work by requiring payments following the work’s first sale. The statute was effective on January 1, 1977 as “the first and thus far only, American recognition of the droit de suit,” or “right of following on” as recognized by France and other civil-law jurisdictions. Continue reading

Curb Appeal: Ninth Circuit Explains § 1202 State-of-Mind Requirements in Stevens v. CoreLogic

Nearly two years ago we wrote about a California case involving the alleged removal or alteration of copyright management information (“CMI”) in the context of real estate Multiple Listing Service (“MLS”) software.  Stevens v. CoreLogic, Inc. has since winded its way up to the U.S. Court of Appeals for the Ninth Circuit, which ruled last week in favor of MLS software developer CoreLogic and affirmed the lower court’s dismissal of the plaintiffs’ copyright infringement suit.

A quick refresher on the facts is warranted given the passage of time.  The plaintiffs are professional real estate photographers who photograph homes that are being put up for sale.  They retain the copyrights to their images but license them to real estate agents, who upload the images to MLS platforms through software programs like those created by CoreLogic.  The plaintiffs sued CoreLogic, claiming that CoreLogic’s resizing and processing of their images for upload to MLS platforms constituted purposeful alteration or deletion of CMI-containing metadata under § 1202 of the Copyright Act.  The district court disagreed and dismissed plaintiffs’ claims on a motion for summary judgment, holding that the photographers had failed to prove that CoreLogic provided or distributed false CMI; that any CMI was embedded in their photographs; that CoreLogic took any action that removed or altered any CMI (assuming it was embedded); or, if such actions were taken, that they were intentional, as required by the statute. Continue reading

Chambers USA 2018 Ranks Partners Lackman and Wolff as Top IP Attorneys; Recognizes Two Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) Practice Groups

Cowan, DeBaets, Abrahams & Sheppard LLP is delighted to announce that partners Eleanor M. Lackman and Nancy E. Wolff and both CDAS’s Entertainment and IP, Copyright and Litigation Practices have been recognized by Chambers and Partners in the Chambers USA 2018: America’s Leading Lawyers for Business guide.

Eleanor M. Lackman

Nancy E. Wolff

This is the fifth consecutive year Ms. Lackman and the second consecutive year Ms. Wolff have been ranked in the Chambers USA guide. They are both among just 41 New York lawyers ranked in the field of “Intellectual Property: Trademark, Copyright & Trade Secrets – New York.”

“Impressed sources” told Chambers that Ms. Lackman is “an absolutely incredible trademark litigator” and added: “She is very practical and always seems to make the right call.” She also has notable experience handling copyright matters, often advising clients across the media and entertainment industries.

Chambers describes Ms. Wolff as “very well-known and well-respected.” She receives plaudits for her expertise in a range of complex copyright matters and is highlighted for her particular skill across the photography and visual art industry.

CDAS’s Entertainment Practice was awarded a regional designation of “Noted Firm” in “Media & Entertainment: Film, Music, Television & Theater – New York” for the third consecutive year, while the Firm’s IP, Copyright and Litigation Practice received a  “Noted Firm” designation in “Intellectual Property: Trademark, Copyright & Trade Secrets – New York” for the second consecutive year.

The annual guide ranks law firms and lawyers based on in-depth interviews with clients and lawyers, technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

CDAS’s Copyright Photo/Video Claims Defense Checklist for Media Platforms

Copyright infringement claims from photographers and image licensing companies have become increasingly common with the widespread use of easily accessible digital content on the Internet and in social media.  Photo copyright owners discover these claims en masse by way of image recognition software, and often pursue them using high-volume contingency fee-based law firms, claiming that any number of posts from time immemorial constitute infringements justifying large settlement demands.  But just because you’ve received an unreasonably high demand that far exceeds any typical license fee doesn’t mean you’re liable for that amount.  Some due diligence can help you gain leverage in these disputes, and possibly even avoid further litigation.  To be sure, content creators should be fairly paid if their content has been misused, but the extremely aggressive way some of these claims are pursued calls for a nuanced and informed approach.  You should contact a firm with experience in copyright and litigating image claims if you find yourself on the business end of one of these demands (especially a formal lawsuit), but for now, here are the basic steps you should take to preserve your best defenses and minimize potential exposure to costs and damages: Continue reading

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.”  TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos.  Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail.  Clients pay $500 per month for these services. Continue reading

Goldman v. Breitbart News, LLC: The Embedding Balance Has Tipped

Update to November 17, 2017 Post.

Last week, Judge Forrest of the U.S. District Court for the Southern District of New York in Goldman v. Breitbart News, LLC – one of a pair of cases pending in Manhattan federal court concerning the practice of “embedding” copyrighted content – issued a ruling in favor of the plaintiff, photographer Justin Goldman, holding that embedding (or framing) does not immunize content users from copyright infringement claims.  The court declined to adopt the Ninth Circuit’s “server test” as set forth in Amazon v. Perfect 10, holding that the location of the allegedly infringed work does not determine whether a defendant has “publicly displayed’ that work in violation of the copyright owner’s exclusive rights.  Put another way, “the fact that the image was hosted on a server owned and operated by an unrelated third party . . . does not shield” defendants from a finding that a plaintiff’s display right had been violated.

The court chiefly relied on the language of the Copyright Act, including § 101’s definition of “display,” which includes showing a copy of a work by any “device or process,” and transmitting or communicating a display by means of any “device or process.”  The court explained that the Copyright Act does not require a user to possess, or to store at their own physical location, a copy of the work in order to display it within the meaning of the statute.  The court further looked to legislative history and the 2014 decision in Aereo to note the application of the Copyright Act to new technologies.   Continue reading

A Coming Change: KodakOne Attempts to Prevent Unlicensed Use of Pictures

On January 9th, Kodak announced its intention to enter the cryptocurrency craze by developing a blockchain-based service that presumably allow participating photographers to get paid each time their licensed work is used on the Internet without their prior consent. As described on the company’s website, the digital platform, currently referred to as KODAKOne, will “provide continual web crawling to monitor and protect the [intellectual property] of images registered in the KODAKOne system.” Upon detection of an unlicensed use, Kodak will manage the post-licensing process and (i) have the picture removed, or (ii) compensate the participating photographer in the company’s own currency, referred to as KodakCoin. By December 11th, the company’s stock had more than tripled. Continue reading

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