Archive by Author

Darth Vader versus the United States of America! (Okay, not really.)

Originally posted 2012-08-06 17:28:23. Republished by Blog Post Promoter



This post discusses what by all rights should be the most exciting case ever heard by any court anywhere. One of the plaintiffs is Darth Vader, and the defendant is none other than the most powerful entity in this solar system, the United States of America…! Okay, no, that isn’t quite true. Neither part of it. One of the plaintiffs is Hayden Christensen, the actor who played Anakin Skywalker (and, for about three minutes, Darth Vader) in two of the Star Wars prequels… and the defendant is the USA network (or, rather, Universal Television Network, Inc., of which USA Network is a division). In fact, in complete contradiction to what I touted at the outset, Forest Park Pictures v. Universal Television Network, Inc. is possibly the least sexy copyright decision of all time. It barely has any copyright law in it! So I’m challenging myself to find something interesting about the 23-page June 26, 2012, decision of the United States Court of Appeals for the Second Circuit—as I write about it. At issue was whether the plaintiffs’ breach-of-contract action was preempted by the Copyright Act. If you’re still awake, let’s begin.

Circuit Judge John M. Walker, Jr. framed the lone legal issue thus: “This dispute over the concept for a television show presents the question of the extent to which the Copyright Act… preempts contract claims involving copyrightable property.” The United States District Court for the Southern District of New York had granted the defendant’s motion to dismiss on preemption grounds. If the Second Circuit disagreed with the District Court… well, then the case wouldn’t even be a copyright case! Oh, the suspense…

 â€¢             •             •

In 2005, Forest Park Pictures—the production company owned by brothers Hayden and Tove Christensen—“formulated the concept of a television show” (in Hollywoodspeak) styled “Housecall,” the main character of which was to be a doctor who, “after being expelled from the medical community for treating patients who could not pay, moved to Malibu, California, and became a ‘concierge’ doctor to the rich and famous.” The brothers Christensen created a written “series treatment” for the concept, “including character biographies, themes, and storylines.” They mailed this written material to an employee of USA Network, then requested a meeting between a representative of Forest Park Pictures and a representative of USA Network. And, since one does not lightly deny the requests of a Sith lord, a meeting was arranged. Or it might have been because the concept was a good one, as it turns out. Read More…

PLEASE TAKE NOTICE: BOSTON* just got real (Boston 3)

Originally posted 2013-06-26 14:54:53. Republished by Blog Post Promoter

*Preliminary note: I know that the band BOSTON is not a party to Ahern v. Scholz, but all the same I like thinking of this case as the BOSTON case, because it involves BOSTON songs, and I like typing BOSTON in all caps, so I hope you’ll forgive me this impertinence/indulgence.

What was until this week a simple federal copyright action is now being brought to the attention of the Attorney General of the United States (who might or might not have other things on his mind just now). Plaintiffs Ahern and Next Decade Entertainment have given notice to Eric Holder of the presence of a constitutional question raised in the pleadings of the suit. (For a refresher of the allegations, see this post and then this post.)

Holder? You brought ’er!

Holder? You brought ’er!

In turn, the United States District Court for the Southern District of New York has issued an order certifying the matter to the AG. “In the parties’ Joint Pretrial Statement, filed with this Court on June 7, 2013,” the order reads,

the plaintiffs… asserted that, should the Court interpret Section 203 of the Copyright Act to allow termination of certain grants of copyrights, such application of the statute would constitute an unconstitutional taking of private property under the Fifth Amendment to the United States Constitution.

Whoa. That’s heavy. And that’s the sort of thing that 28 U.S.C. 2403(a) and F.R.C.P. Rule 5.1. mandates be brought to the attention of the AG.

The constitutional question as framed by Ahern:

Whether an author of musical compositions, written in whole or in part after January 1, 1978, whose copyright ownership had been transferred by him to a third party pursuant to a grant in the form of a five-year agreement entered into in 1975 encompassing all songs written by the author through 1980 [“Gap Works”], can invoke the termination of copyright assignment provisions of Section 203 of the Copyright Act….

Permitting Gap Works to qualify for the provisions of [S]ection 203… would result in [the plaintiffs]’ copyright ownership… being reduced from the fifty-six years set forth in Section 304… the law in existence at the time the 1975 [agreement] was executed… to only thirty-five years. Such a reduction… constitutes a violation of the Fifth Amendment to the United States Constitution in that it is an unlawful taking of private property without compensation to promote a public purpose (i.e., the public policy decision to afford composers the opportunity to reclaim their copyrights).

So now, if we’re lucky, we’ll get to read what Mr. Holder has to say about all this.

dot… Pineapple?

Originally posted 2013-04-01 00:01:28. Republished by Blog Post Promoter

LoC got wind—and then a copy—of this letter, dated as of the date of this post, to ICANN in support of the creation of a new top-level domain. Further updates as events warrant.

An excerpt:


The undersigned respectfully present this white paper to the Internet Corporation for Assigned Names and Numbers (ICANN) in order to advance the case for the creation of a new top-level domain (TLD), to wit: “.pineapple.” The creation of such a TLD would without question help resolve the longstanding debate over what Internet content is pineapple-related, and thereby aid service providers in discharging their responsibility under the Tropical Plant Communications Act of 1996.

View the entire white paper here.


“I don’t even own a TV”—Aereo (Part Two)

Originally posted 2014-10-26 19:37:31. Republished by Blog Post Promoter

aereo-logoFamiliarity of the reader with Part One is presumed.

As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”

Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.

How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.

But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.

Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.

Where’s the harm in that? Read More…

Where Were You When “Happy Birthday to You” Was Found to Be in the Public Domain?

You can wish MDB a HBD on 3/12. Every year.

FYI, You can wish MDB a HBD on 3/12. Every year.

Newly discovered evidence [according to a court filing] “proves conclusively that Happy Birthday has been in the public domain since no later than 1922.” At stake is the more than $5,000 per day—or $2 million per year—that singers, stage directors, filmmakers and advertisers currently shell out to use the [song]. – The Washington Post

My entire extended family and I—some six dozen of us, spanning four generations—were at a Joe’s Crab Shack celebrating Nana’s big 1-0-0. The wait staff was midway through a verse of the restaurant’s proprietary alternative ‘Joyful Anniversary of Your Being Born’ melody when one of the busboys—a second-year law student, I think I’d heard him mention—glanced at his phone. He must have gotten word of the court decision just then, because he signalled to the rest of the servers’ ensemble and as one they transitioned to the previously-verboten tune. It took a moment for the other relatives and me to catch on to what was happening, but when we did we joined in. More than one voice cracked—with emotion, for this was a truly momentous occasion. As it turned out, Nana herself entered the Great Public Domain in the Sky the following month—by which I mean she died—but she died with her faith in the American legal system restored, even if she never forgave Chester A. Arthur.”

– Randall W., Atlanta

“I was at home, swimming in an enormous pile of money—the royalties I’ve earned from selling eBooks of public domain works on No wonder the Warner Music Group wanted to keep the most recognized song in the English language out of there. The public domain is a festering goldmine.”

– Molly M., Raleigh-Durham Read More…

No safe harbor for this shark.

Matthew David Brozik

One groovy shark.

Originally posted 2013-04-29 12:04:55. Republished by Blog Post Promoter

Generally, one doesn’t expect to find copyright decisions of note in state courts, but every so often one will crop up. One really doesn’t expect to find interesting decisions on state-court motions to dismiss a party’s fourteenth affirmative defense… and yet here we are, reading with great interest the April 23, 2013, decision of the New York State Supreme Court, Appellate Division, First Department in UMG Recordings, Inc. v. Escape Media Group, Inc.

Defendant Escape Media Group owns and runs an online music streaming service called Grooveshark, where users can upload audio files, usually songs, to an archive maintained on Escape’s servers; other users can search the servers and stream the files to computers and other devices. The setup is designed to be on the up-and-up, though; it isn’t 1999 Napster. Escape “has taken some measures to ensure that Grooveshark does not trample on the rights of those who own copyrights in the works stored on its servers,” reads the First Department decision. “For example, it is a party to license agreements with several large-scale owners and licensees of sound recordings. In addition, it requires each user, before he or she uploads a work to Grooveshark servers, to confirm ownership of the recording’s copyright or license, or some other authorization to share it.”

Alas! Read More…

got what, now?

GotmilkIf you’re reading this, then the settlement check has cleared. But you’ll never believe who paid whom for what!

My friend—whom I will call Bryan (not his real name)—has just wrapped up, with my personal and professional help, some odd dealings with the California Milk Processor Board. Yes, the “got milk?” people.

Yes, because Bryan was parodying the “got milk” registered trademark (without “permission”).

Yes, to promote a band.

Yes, that band is Neutral Milk Hotel (which might or might not have been styled by a CIA band-name-generating computer algorithm).

Bryan—aware that he’s one of many dedicated/long-suffering fans of the American indie rock band, which was active from 1989 to 1999—thought that there might be likeminded persons willing to shell out a few bucks for a T-shirt reading got neutral milk? (in the “got milk?” typeface), despite that the band has been on hiatus for well more than a decade. And Bryan was correct: after having some shirts made (at his own cost), he did sell a few. Bryan also registered the URL “” Somehow, it came to the attention of the Board (the cease and desist letter reads, in pertinent part, “It has come to our attention”) that Bryan had registered “”—but it did not appear to the Board (or its counsel) that Bryan “has rights or legitimate interests” in the domain name. Read More…

Ghost Rider vs. Free Riders?

Ghost_RiderNews from the Second Circuit Court of Appeals:

The man who might have created the Marvel Comics superhero/anti-hero Ghost Rider… well, might in fact have created Ghost Rider, and might not have transferred all of his rights in the character forever. In both are true, then Marvel might have infringed upon his copyright many times over, but most significantly recently when it produced the awful, awful Ghost Rider movie of 2007 and the sequel that this writer didn’t even bother to see because the first one was so bad.

On appeal from a summary judgment granted to the defendants (for all relevant intents and purposes, Marvel Comics) by the United States District Court for the Southern District of New York (by way of the Southern District of Illinois), the Second Circuit reversed the dismissal of plaintiff erstwhile freelance comic book writer Gary Friedrich’s amended complaint alleging infringement on the grounds that Friedrich had, in 1978, assigned to Marvel the renewal term rights he held in Ghost Rider (the character) by way of a form work-for-hire agreement. “The facts,” the Second Circuit notes, with admirable succinctness, “are heavily disputed.”

But what the appellate court took particular issue with is the language of the one-page form purported work-for-hire agreement that Marvel asked Friedrich to sign in 1978, when the current Copyright Act took effect and, among other things, provided specific rules about works made for hire. Marvel, apparently desiring and intending to get its ducks (including Howard) in a row, had its freelancers execute brief, standard contracts purportedly providing that all work would be owned by Marvel. But the language of the agreement—indeed, the “critical sentence defining the ‘Work’ covered,” notes the Second Circuit, “is ungrammatical and awkwardly phrased.” Well, what do you expect, Your Honors? These guys write comic books! You know… for kids!

Make mine Marvel.

Make mine Marvel.

Mindful that the purpose of the renewal term allowed by the Copyright Act for works still in their initial term of protection on January 1, 1978, is “to provide authors a second opportunity to obtain remuneration for their works” and “to renegotiate the terms of the grant once the value of the work has been tested,” there was no way the Second Circuit was going to let stand the decision that Friedrich had re-granted his rights (whetever they might be) to Marvel in an ungrammatical and ambiguous document. In any event, summary judgment was not appropriate, because of those pesky issues of fact. Indeed, “[t]he district court concluded that genuine disputes of material fact surrounded the authorship of the work, but it nonetheless granted Marvel’s motion [for summary judgment] and denied Friedrich’s.”

Because that’s another thing: When reconsidering the dismissal of the plaintiff’s complaint, the Second Circuit assumed as true all of the facts as alleged by Friedrich. But there was also Friedrich’s own motion for summary judgment, which the district court had of course denied and which the appellate court had as well to reconsider, to do which it had to then look at the alleged facts in the light most favorable to Marvel. And these include allegations that Friedrich actually had very little if anything to do with the creation of Ghost Rider—one of the sillier “heroes” in the Marvel pantheon, really. At least both Spider-Man and Captain America make cameo appearances in the decision. Now those guys are heroes.


UPDATE:  Analysis from Pamela Chestak.

A Mickey Mouse confession.

Horse thief.

Horse thief.

Has it really been fifteen years since the Copyright Term Extension Act was signed into law? (It has. President Clinton signed the bill on October 27, 1998.) Time flies when you’re protected by copyright law, I suppose. And what the CTEA did, of course, is extend the period of copyright (for many works) for another two decades. (For the details and a discussion of the opposition to the law, read this piece from the Washington Post.)

The CTEA is popularly known as the “Sonny Bono Act” (in memory of the musician-turned-Congressman who had died tragically earlier in 1998)… and derisively as the “Mickey Mouse Protection Act,” because if not for the CTEA, “Steamboat Willie,” the first Mickey Mouse cartoon, would have entered the public domain in 2003. According to some, this would have allowed anyone to use the character in new works, but that hardly seems correct, being that (1) the depiction of Mickey Mouse is a registered trademark of the Walt Disney Company, and (2) there is no 2. If the 1928 short film were to enter the public domain, there would likely be very little harm done to Disney. Many much wiser legal scholars than I have addressed this topic, however, so instead I’m going to tell you about my personal connection to Mickey Mouse:

Not my grandfather's work.

Not my grandfather’s work.

Years ago, my late paternal grandfather had a business that sold souvenir items to gift shops in New York City. My grandfather, as I understand it, bought in bulk various and sundry (cheap) novelty items, like plates, mugs, key chains, oversized pencils, piggy banks, etc., on which he would then have printed or otherwise applied graphics to make them New York City souvenirs. Usually, the graphic was some form of the I♥NY (a trademark of the State of New York).

And sometimes it included a depiction of none other than Mickey Mouse.

Yes, my grandfather received a cease-and-desist letter from counsel for Disney. I couldn’t tell you if my grandfather ceased or desisted applying Mickey Mouse graphics on the souvenirs that he sold to gift shops. He probably did. That is, he certainly did when he eventually gave up the business and moved to Florida.

So there’s my confession: I come from a family of trademark infringers. One, anyway. I hope you’ll still be able to respect me. It feels good to get that off my chest, anyway.

Tell Yes artist: “No. No. Fifty million times no.”

Avatar lawsuit - Comparison with Yes album covers 2If the federal copyright complaint that you file on behalf of your client includes an assertion that “[the d]efendants… knew or should have known that they were violating [the p]laintiff’s rights,” then you probably want to be sure that you’re not bringing an ill-conceived lawsuit, because what copyright law does cover in this country—and what it doesn’t—is something a lawyer should know.

Avatar lawsuit - Comparison with Yes album covers 1The lawsuit brought this week by the world-famous English visual artist Roger Dean against the world-famous moviemaker James Cameron alleging, principally, infringement of Dean’s original works by Cameron’s Avatar is making me angry. (It’s here.) And it’s not at all because I think either Cameron or Avatar is untouchable. In fact, I thought Avatar was nothing special, and I haven’t really liked a Cameron film since Aliens (although his work as special effects director for Piranha Part Two: The Spawning is exemplary).

Hasn't seen Titanic.

Hasn’t seen Titanic.

No, I just think that Dean’s lawsuit is gold-digging of the worst kind. The “critically-acclaimed and highly lucrative” Avatar has—according to the complaint, anyway—to date grossed $2 billion… and Dean wants $50 million of it.

The only thing standing in Dean’s way, however, is that his own complaint hints at his (and his lawyers’) misapprehension of American copyright law. Read More…