COM Law Ch. 12 continued: Copyright on the internet

Contributory liability

1) A person may be held liable for the infringing acts committed by another if s/he had the: right and ability to control the infringing activities, and had a direct financial interest in such activities. The existence of direct infringement is required to establish a claim of vicarious infringement. 2) However, it is not necessary for the alleged infringer to have intent or knowledge of the infringement

What is it okay to use other entities' trademarks?

1) Certified trademarks 2) Fair use trademarks (descriptive fair use and nominative fair use)

Other parody examples

1) Disney and Family Guy ("When You Wish Upon A Star") 2) Beastie Boys and female engineer toys (Use of the song "Girls")

Remedies for copyright infringement

1) injunction 2) impounding and destruction (or other disposition) of infringing copies 3) damages: infringer is liable for either: actual damages to copyright holder plus additional profits of infinger; or statutory damages 4) costs and attorney's fees 5) criminal penalties

Test for copyright infringement

1) ownership of a valid copyright and 2) copying of elements of the work that are original To prove element 2, a plaintiff must show 1) copying actually occupied- probative similarity test (direct vs. circumstantial evidence) 2) The copying of the copyrighted material rendered the infringing and copyrighted material substantially similar- ordinary observer test

Copyright infringement

A copyright infringer is anyone who violates any of the exclusive rights or imports infringing or unauthorized copies into the U.S.

Purpose of trademark

A source identifier, assures consumers of the quality of goods bearing the mark, represents good will of the company, informative for customer, brand recognitions for the company

What is protectable under trademark?

Arbitrary and fanciful terms, suggestive terms, descriptive terms that acquire secondary meaning over time and substantially exclusive use

Music copyright examples

Blurred Lines, Ed Sheeran, Justin Bieber, etc.

How long does copyright last?

Generally copyright lasts the life span of the author plus an additional 70 years before entering the public domain. Joint works last the life of the last surviving author plus 70 years. Works made for hire, anonymous works or pseudonym works are copyrighted for 95 years after publication or 120 years after creation, whichever expires first.

Distinctiveness spectrum

Generic, descriptive, suggestive, arbitrary, fanciful

TCA Television v. McCollum

In this copyright infringement suit, plaintiffs challenged the district court's determination that defendants' verbatim use of a portion of Abbott and Costello's iconic comedy routine, "Who's on First?," in the recent Broadway play "Hand to God," qualified as a non‐infringing fair use. The court concluded that defendants' entitlement to a fair use defense was not so clearly established on the face of the amended complaint and its incorporated exhibits as to support dismissal. In this case, defendants' verbatim use of the routine was not transformative, defendants failed persuasively to justify their use of the routine, defendants' use of some dozen of the routine's variations of "who's on first" was excessive in relation to any dramatic purpose, and plaintiffs alleged an active secondary market for the work, which was not considered by the district court. The court concluded, however, that the dismissal is warranted because plaintiffs failed to plausibly plead ownership of a valid copyright. The court found plaintiffs' efforts to do so on theories of assignment, work‐for‐hire, and merger all fail as a matter of law. Accordingly, the court affirmed the judgment.

Licenses

Licenses can be exclusive or nonexclusive. Unlike transfers, not required to be in writing unless it's an exclusive license. It's a good idea to have it in writing to document the nature and scope of the license. Can have an implied license (no writing)—the conduct of the parties indicates that some license is to be extended

Are materials on the Internet copyrighted?

Materials on the internet are protected by copyright laws unless expressly disclaimed, and a license or permission is required. Publicly available does not mean public domain

What isn't a trademark?

Merely descriptive terms, functional shapes, generic words, instructional expressions. You can lose your trademark if you allow your trademark to become generic (people referring to any kind of tissue as a Kleenex)

Transfer of copyright

Ownership can be transferred in whole or in part. Owner retains rights unless explicitly assigned. Sale of an item doesn't transfer underlying copyright without written transfer. A transfer/assignment of owners other than by operation of law must be in writing and must be signed by the copyright owner or his/her agent. Non-exclusive License Not a "transfer"

Digital Millenium Copyright Act (DMCA)

Prohibits trafficking in technology including products or services that circumvent access controls.

Rosa and Raymond Parks Institute for Self Development v. Target

Target was selling Rosa Parks products (books/movies/etc.) Got sued. Court took Target's side.

Trade dress

The "look and feel" of your brand (very hard to get)

Jordan v. Dominick's Finer Foods

The super market offered a coupon for a steak as tribute to Michael Jordan. Court sided with Michael Jordan.

Trademark infringement

The test is a likelihood of consumer confusion (trademark law is really about the consumer)

Richard Prince example

This was an artist who took people's Instagrams, blew them up, and put them in an art gallery. Got sued by a lot of people; lost sometimes and won other times.

Nominative fair use

Using another's trademark deliberately to refer to that party (examples: new reporting, commentary, parody, comparative)

DMCA and Lenz case

Woman put a video of her baby up dancing to a song on YouTube and got a take down case. It was decided that it was a fair use and decided that copyright owners can't just send out take down notices to anyone and everyone; there has to be a good reason for it.

Types of trademarks

Word marks, slogans, product configurations, product designs, color

Trademark law

Words, names, symbols or devices used in connection with goods or services to indicate source.

Classic fair use

You can say the word "target" without infringing on Target's trademark (using the word other than "as a mark")

Fox News Network v. TVEyes Inc.

https://www.law360.com/articles/835668/fox-news-doubles-down-against-tveyes-in-fair-use-case