Category Archives: Copyrights

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When Can a Company Be Liable for Its Vendor’s Copyright or Patent Infringement?: Hollywood Studios’ IP Headache

The case of Rearden LLC et al. v. The Walt Disney Company et al., Nos. 3:17-cv-04006, 04191 & 04192 (N.D. Cal.), has been covered more in the Hollywood Reporter than in legal publications, but it is both a “Hollywood story” and a case with intellectual property issues that cover the spectrum of patent, copyright and … Continue reading this entry

Second Circuit Suggests that the Value of an Accused Secondary Use Dictates What Constitutes Fair Use

In a recent decision, the Second Circuit further clarified the confines of permissible fair use, reversing the district court’s ruling that functionality that enabled customers to search for videos by term, and to view and archive such videos, was protected fair use. In doing so, the court relied on its “Google Books” fair use decision but … Continue reading this entry

Case to Watch: Goldman v. Breitbart, involving embedded Tweets of Tom Brady recruiting Kevin Durant in the Hamptons

The Southern District of New York has teed up an important copyright issue for interlocutory appeal, which could create a circuit split with the Ninth Circuit’s 2006 decision Perfect 10, Inc. v. Amazon.com, Inc.  On March 19, Judge Katherine Forrest certified for interlocutory appeal her February 15 summary judgment decision favoring the copyright owner, Justin … Continue reading this entry

New Possibilities for Copyrighting Consumer Products

Traditional wisdom has been that aesthetic designs for three-dimensional consumer products, while protectable by design patents and as trade dress, are not protectable under copyright law which is typically associated with purely artistic works.  However, the Supreme Court’s March 2017 decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. refined the test for copyrightability of … Continue reading this entry

Design Patents and Copyrights for Designs on Useful Articles

Two recent cases illustrate the potential benefits of protecting intellectual property rights with both design patents and copyrights, particularly for an article that has both utility and a design, including because a design patent infringement analysis may sometimes be more straightforward to apply. In a design patent case, Columbia Sportswear North America, Inc. v. Seirus … Continue reading this entry

The Supreme Court's Aereo Ruling: Is the Sky Falling for Cloud Computing?

With the Supreme Court’s Aereo decision finally out, the digital industry is struggling with its impact, if any, on various products and services, particularly with regard to cloud computing. However, the Supreme Court narrowly tailored the Aereo decision to services that closely resemble cable TV. Thus, suggestions that “the sky is falling” for cloud computing or other … Continue reading this entry

Responding to Unsolicited Ideas While Avoiding Claims of IP Theft

A company’s receipt of unsolicited ideas for new products or product modifications can create significant risks. The receiving company may have similar products or improvements under development or may undertake these efforts in the future without any actual knowledge that the unsolicited idea was sent or received. In such a situation, the receiving company going … Continue reading this entry

Should You Pay to See the Law You Must Obey?

Earlier this month, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet resumed hearings on copyright reform. One of the three topics discussed at the January 14, 2014 hearing was whether model codes and technical standards developed by private standards developing organizations (“SDOs”) and subsequently enacted into federal, state or municipal laws should … Continue reading this entry

DMCA Deadlines May Not Trump Registration Requirement for Copyright Infringement

Before bringing an action for Copyright infringement in Federal Court, a Copyright holder must first register their Copyright with the U.S. Copyright Office. See 17 U.S.C. § 411. This is true even though a Copyrighted work is automatically entitled to Copyright protection upon creation. See 17 U.S.C. § 102(a). However, whether registration has occurred for the … Continue reading this entry

Good Faith Belief of Invalidity May Be Defense to Induced Infringement and Opinion Letters May Become Increasingly Important

The Federal Circuit recently denied a request for rehearing en banc in the matter of Commil USA, LLC v. Cisco Sys., Inc., in a 6-5 vote of the participating judges.  2013 U.S. App. LEXIS 21713 (Fed. Cir. Oct. 25, 2013) (“Commil II”).  The result is that evidence of a good faith belief of invalidity of … Continue reading this entry

Fair Use Revisited - What's Transformative?

Last month, photographer Peter Cariou petitioned the Supreme Court to overturn the Second Circuit ruling in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), a copyright infringement case, in which the Second Circuit held that twenty five artworks created by the appropriation artist Richard Prince–which incorporated Cariou’s original photographs–were fair use and non-infringing. At center in … Continue reading this entry

Federal Circuit Decision Highlights Seldom-Used Doctrine of Equivalents Analysis

The Federal Circuit’s August 27, 2013 decision in Applied Medical Resources Corp. v. Tyco Healthcare Group LP (Case No. 2012-1412) (nonprecedential) relied on the seldom-used “difference in kind” test in analyzing infringement under the doctrine of equivalents, considering whether an accused product was different in kind – rather than just degree – from the claimed invention. … Continue reading this entry