Tag Archives: Copyright Law

Bratz, foiled again! (Bumped and updated)

Originally posted 2010-07-23 11:10:54. Republished by Blog Post Promoter

First, December’s 15, 2009′s story:

Remember the Bratz dolls case, and the phenomenal legal fees application that followed?

It’s back!   The Ninth Circuit Court of Appeals stayed the trial judge’s order basically liquidating the Bratz.  Here’s what the WSJ Law Blog reported last week:

The Ninth Circuit on Wednesday ruled that Bratz maker MGA Entertainment can continue selling its dolls, despite the stinging defeat it suffered last year a jury when a Riverside, Calif., jury awarded Mattel, Inc. $100 million in damages in a closely followed copyright-infringement lawsuit. . . .

The judges on the appellate panel, Alex Kozinski, Kim Wardlaw and Stephen Trott, questioned whether the trial judge went too far by awarding MGA’s Bratz doll franchise to Mattel and wondered why he didn’t instead award Mattel a royalty or ownership stake in the company.

I never played with dolls due to a household manliness mandate, and I’m already uncomfortable blogging about this for the fourth time, so let’s just note it and go back to what I was doing with this here mitre box and also I’m going to do some re-grouting on some tiles somewhere before bed.  Which I sleep in wearing a rustic burnoose emblazoned with my varsity letter. With the windows open.

Bratz-tip to Jaded Topaz!

UPDATE:  In response to certain inquiries, a clarification:  No, I did not actually earn a varsity letter in high school or otherwise.   But the one on my night-burnoose is “mine.”  It’s a kind of … trophy I took from the still-quivering hulk of the middle-linebacker I brutally beat up and left for dead in a Chicago alley, okay?

Now, today’s update:

No surprise here in light of the earlier ruling, but stunning nonetheless:  The Ninth Circuit kayos the award!  Choice quote — Kozinski, of course — via Bloomberg:

Even assuming that MGA took some ideas wrongfully, it added tremendous value by turning the ideas into products and, eventually, a popular and highly profitable brand.  It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names.

That’s going to ruin a lot of Big IP summers on Cape Cod this weekend.

UPDATE:  For Mattel, it only gets worse:

[Today a] U.S. jury decided that MGA Entertainment Inc is the rightful owner of the once-billion dollar line of pouty-lipped Bratz dolls.

The astonishing loss for the world’s largest toy maker concluded a case that began in 2004, when MGA’s line of dolls was all the rage among teen and preteen girls. Mattel accused Van Nuys, California-based MGA of stealing its designs by hiring away a key employee.

Mattel CEO Robert Eckert sat stone-faced, staring straight ahead as the verdict was read on Thursday in a Santa Ana, California, federal courtroom. He said afterward that he was disappointed by the verdict.

“We remain committed to protecting the intellectual property that is at the heart of business success,” Eckert said in an email.

What?  MGA’s intellectual property?

The opinion’s here.

An answer to the musical question

Originally posted 2007-03-21 19:12:17. Republished by Blog Post Promoter

Unsurprising news:

In a dramatic acceleration of the seven-year sales decline that has battered the music industry, compact-disc sales for the first three months of this year plunged 20% from a year earlier, the latest sign of the seismic shift in the way consumers acquire music.

At least don’t tell me anymore that file-sharing leads to more music purchases — an argument that never held any water. But let’s deal with the new world. Despite keeping innumerable lawyers in silk undergarments with its sue-every-sophomore litigation approach, the music industry will never put this genie back in the bottle and return us to a time when you had to buy a whole album to get the one good song. Michael Arrington argues that this is good news, because it’s time for a long-overdue swing of the pendulum:

The faster music labels realize their massively profitable days are over, the better it will be for them, as well as the bands they represent and us, their customers. Digital music sales are not going to make up for lost revenue. Suing their customer base is not going to make up for lost revenue. In fact, absolutely nothing is going to make up that lost revenue. The industry, revenue-wise, is going to continue to shrink.

Can he be anything but right?

UPDATE:  Instapundit picks up the story.


Originally posted 2009-07-01 10:30:53. Republished by Blog Post Promoter

David Post discusses Judge Richard Posner’s musings on the pretty hopeless prospects of the newspaper biz:

[I]f “the newspaper” as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place? . . .

[Posner's] proposal for reform, however, goes into the “Cure Worse Than Disease” file:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

It’s hard for me to summarize why this is so terrible an idea.

But — like online copyright infringement — impossible to resist the temptation to try!

Life Imitates the National Debate

Originally posted 2005-05-23 15:19:00. Republished by Blog Post Promoter

Outgoing New York Times ombudsman Daniel Okrent writes about 13 Things I Meant to Write About but Never Did. A favorite, via Best of the Web Today:

Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults. … I didn’t give Krugman … the chance to respond before writing the last two paragraphs. I decided to impersonate an opinion columnist.

Don’t ask the obvious question — “Why didn’t you write about it, Dan?”, because, ho, ultimately he has, hasn’t he? Believe me, for the Times, that’s not a long delay before acknowledging the truth. Heck, I had to hit “refresh” a couple of times to make sure this wasn’t a parody.

Yes, well, you’ll forgive me for that. Hard not to think that our friend Bob Cox of the blog The National Debate ultimately had an effect on his sometime lunch companion. The two met shortly after the Times and Bob locked horns over the latter’s posting of a Timescorrections page we’d like to see” that made the point — a bit too realistically for the Old Grey Lady — that for no good reason, misstatements of fact and other errors in Op-Ed columns are not corrected in the paper unless the columnist himself decides to make such a correction. (Not that the Times loses a lot of sleep over corrections.)

The Times screamed copyright infringement (they would have done better to claim trade dress infringement, but the DMCA works better for copyright bullies than trademark ones). Bob found himself a smart lawyer and, suitably hit on the nose with a rolled up New York Post, the angry doggie backed off. Cucumber sandwiches, and the founding of the Media Bloggers Association by Bob, followed.

While, not suprisingly, the Okrent column is tantalizing for what could have been, there were a couple of other nice nuggets. This one hit my particular vein:

I still cherish the First [Amendment]; I still think it’s the cornerstone of democracy. But I would love to see journalists justify their work not by wrapping themselves in the cloak of the law, but by invoking more persuasive defenses: accuracy, for instance, and fairness.

Say it, Dan. Too little, not entirely too late; better than nothing, for sure.

Little people, big lawsuits

Originally posted 2008-01-10 11:18:01. Republished by Blog Post Promoter

The Washington Post reports on legal action taken by ordinary folk against Big IP Content Generating institutions for lifting and using “user-generated” content, i.e., pictures and stuff uploaded onto blogs and galleries by regular people. The corporations are doing this, evidently, in the quest for authentic authenticity. There will be spanking.

This is an odd quote, though, from Lawrence Lessig:

What’s noteworthy in each of these cases, Lessig says, “is that bloggers, a community typically associated with piracy, are rallying in support of copyright.”

Is that a fair “association”? Hat tip to erstwhile blogger “Penny Wit.”

From “homage” to “infringement”

Originally posted 2010-01-18 23:27:22. Republished by Blog Post Promoter

I’m not so doctrinaire:  Sometimes a press release is actually worth posting:

For more than thirty years, as hip-hop evolved from the urban streets of New York to its current status as a multibillion dollar industry, hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. But when lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”

COPYRIGHT CRIMINALS, a new film by Benjamin Franzen and Kembrew McLeod, will air on the PBS series Independent Lens January 19 (check local listings).

COPYRIGHT CRIMINALS showcases many of hip-hop’s founding figures like Public Enemy, De La Soul and Digital Underground, along with emerging artists such as audiovisual remixers Eclectic Method.  It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.

Computers, mobile phones, and other interactive technologies are changing our relationship with media, blurring the line between producer and consumer, and radically changing what it means to be creative. As artists find ever more inventive ways to insert old influences into new material, the film asks a critical question: can anyone really own a sound?

The trailer’s here.  Why, if I had a TV, I just might watch this!

What can I tell you?  These guys are playing my song.

So to speak.

New Congress still owned by Hollywood

Originally posted 2007-01-14 19:43:03. Republished by Blog Post Promoter

The only reason the new Senate bill clamping down on home recording isn’t completely awful is that it’s probably technologically irrelevant.  But it’s still pretty awful.  Hat tip to Dean.

What’s your poison? Copyright infringement.

You’ve heard the tale in one form or another: A bar plays a recorded song over its sound system (without permission), then gets sued for violating the public performance right of the musical composition’s copyright holder. But it’s just an urban legend, right? Wrong. It happens. It happened earlier this month.

There is (according to the complaint in Broadcast Music, Inc., et al. v. JNJ Enterprises, Inc., et al., anyway) an establishment in White Plains, New York known as The Lazy Boy Saloon (but also as The Lazy Boy Saloon & Ale House and as Lazy Lounge) where, on August 16, 2013, four songs in the formidable “BMI Repertoire” were played, presumably over the speakers in the place with reckless abandon and utter disregard for law and/or order. That is: “Defendants publicly performed and/or caused to be publicly performed at the Establishment the musical compositions identified… without a license to do so. Thus, Defendants have committed copyright infringement.”

(The four songs? Brown Eyed Girl; Every Rose Has Its Thorn; Sympathy For The Devil; and Talk Dirty To Me.)

Matthew David BrozikThe verified complaint is brief; it has all of twenty paragraphs of allegations. There are no sordid details (other than that, of the four songs at issue, two are by Poison). In fact, this lawsuit is so… boring, that I’m wondering (as you might be as well) why I’m writing about it. Maybe because it seems like such a small thing, hardly worth starting a literal federal case over.

Don’t get me wrong: I’m all for protecting the rights of copyright holders and other owners of intellectual property. I’m the guy who actually says, “Don’t steal music” to other people and means it.

But this… this seems like something that could have been overlooked by BMI, no? Read More…

Covering your assets.

Over the weekend, all the nerdiest news outlets reported that Volpin Props—a company that makes props and replicas “mostly videogame related,” according to the outfit’s Facebook page, “but anything goes!”)—received a cease-and-desist letter from Couristan, Inc., a rug and carpeting concern… for possibly the nerdiest/coolest reason imaginable (under the circumstances): Volpin had made for two attendees of the recent DragonCon—held at the Atlanta Marriott Marquis, a hotel with a wide variety of some very, very busy carpeting—custom camouflage outfits in the same pattern as one of the busier carpets at the venue. See a terrific photo here.

Does not wear carpet.

Does not wear carpet.

This probably would have been fine. That is, making custom carpet-camouflage costumes for a couple of conventioneers likely would not have gotten Volpin on Couristan’s radar. Or maybe it would have garnered Volpin praise from the carpeter. But Volpin didn’t just make the costumes; it reportedly put the fabric up for sale at Spoonflower.com, a site that sells fabrics, wallpapers, decals, gift wrap, etc. And that got Couristan’s attention—and Volpin got a C&D letter.

Because of course. And I mean that: Assuming that Couristan holds the copyright to the carpet pattern—and, man, what a pattern it is!—then Volpin can’t sell a fabric with that same pattern, else it infringe on Couristan’s intellectual property rights. And, to Volpin’s credit, the company’s principal—Harrison Krix, himself of Atlanta—has asked (on Facebook, where much of the public commentary has been posted) that people “not send Courtisan [sic] Inc or Marriott any nasty messages concerning this. I’m in complete agreement with their decision.”

(If you have three or four hours free, you might read the nearly 500 comments on Volpin’s Facebook posts about carpet-flage-gate. Then check out photos of all the carpeting at the Atlanta Marriott Marquis.)


Split decision

Originally posted 2011-02-01 12:46:49. Republished by Blog Post Promoter

The threat from abroad?!

During my traditional end-of-December goof-off here I didn’t pay adequate attention to the important non-ruling in Costco v. Omega, which involves an issue I have had some involvement in.  That is the application of the First Sale Doctrine in copyright to what I think should be considered the specious category of “overseas only” copyright-protected material.  It’s another “diversion” play.  I think they’re all nonsense.  But unlike most diversion nonsense, this bit may have a statutory basis that has to be addressed.  Our Supreme Court … didn’t.  And neither did LIKELIHOOD OF CONFUSION®, but then again, I don’t get the big bucks to like those guys.

The other difference is I can just wing it, or, worse, crib from someone else.  So, as is so often the case when I miss one like that, however, I get the advantage of, well, copying from someone else.  Here’s some of what Richard Bergovoy has to say about it:

The United States Supreme Court deadlocked 4-4 on the question of whether the “first sale doctrine” permits copyrighted goods manufactured overseas but not authorized for sale in the United States to be sold here on the “gray market,” upholding a Ninth Circuit opinion which ruled in favor of the copyright owner that the doctrine does not apply.

The unsigned opinion in Costco Wholesale Corp. v. Omega S.A. was one of the shortest in the Court’s history: “The judgment is affirmed by an equally divided Court.” . . .

The case involved Omega Seamaster watches manufactured in Switzerland that were engraved on the underside with a US copyrighted “Omega Globe Design.” Omega sold the watches only for distribution in South America, but they found their way to the United States, where they were resold by Costco stores in California at a price of $1,299, compared to the $1,999 suggested retail price for authorized US resellers. Read More…

When an issue of first impression makes a bad one

Have you ever read a decision and just marveled at the apparent restraint of the judges? “Why don’t they tell this party to shut up?” you wonder. “Why don’t they sanction him, throw him in jail, and seize all of his assets, just for advancing such a ludicrous argument?” The August 20, 2013, decision of the United States Court of Appeals for the Second Circuit in Unclaimed Property Recovery Service, Inc. v. Kaplan is such a decision for me. I read it and thought some very uncharitable things about the plaintiffs-appellants. You might as well!

The plaintiffs-appellants are a company and its principal: UPRS, a business that locates unclaimed financial property and returns the property to its owners; UPRS is Bernard Gelb’s company. In 2006, UPRS and Gelb were two of several plaintiffs who filed a class action in the United States District Court for the Eastern District of New York (whence this lawsuit also). The class was represented by lawyer Norman Kaplan (of the town where this writer lives, though I don’t believe we have ever met), although Gelb did much of the legwork in preparing the class action complaint. Indeed, Gelb (not a lawyer) allegedly wrote the Amended Class Action Complaint  (what the appellate decision defines as the “First Complaint,” for reasons unclear) and compiled the 305 pages of accompanying exhibits (yes, the “First Exhibits”). Kaplan, as class counsel, signed and filed the First Complaint and First Exhibits on behalf of the class in May 2006. The district court dismissed the class action as time-barred, and Kaplan (timely) appealed on behalf of all class members.

Scratches his head.

Scratches his head.

While the appeal pended, Kaplan and Gelb fell out; Kaplan informed Gelb that he would no longer represent Gelb and UPRS. Gelb and UPRS retained new counsel. Three members of the class revoked the powers of attorney that they had given Gelb, keeping Kaplan as their attorney of record in the class action. New counsel for Gelb and UPRS moved to withdraw the pending appeal in its entirety; the Second Circuit granted the motion as to Gelb and UPRS but denied it as to the other appellants/class members. And soon after that decision was issued, “Gelb and UPRS obtained Certificates of Registration from the United States Register of Copyrights for the First Complaint and First Exhibits.” This is where you might want to scratch your head, if you weren’t already doing that.

You know what’s coming, of course. Read More…

Best of 2010: Moral rights in Massachusetts

Originally posted 2010-12-23 14:30:02. Republished by Blog Post Promoter

First published April 12, 2010.

Lee Gesmer reported last month on a pretty important decision in copyright law:  A First Circuit ruling applying the Visual Rights Act, which–well, Lee says it very well himself, actually:

At the end, he had only his "honour"

Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA.  Christoph Büchell is a Swiss “installation artist.”  Think very large, very avant-garde.  The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.”   Wow.  Sounds just right for good old, left-leaning western Mass.  Not.VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.”   For example, part of the law provides that the author of a “visual work” has -

the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent.   That is, the artist stormed off after artistic differences with the museum, and  museum prepared to present the work, entitled “Training Ground for Democracy,” like or not.  Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been.

Hm.  Sometimes I wish I had a scorecard to figure out how libertarians, and or mere free-market magic hand guys like me, are supposed to come out on “moral rights.”  I’ll say this much:  For a country that doesn’t speak a Romance language, the idea of a federal statute that protects “honor” is problematic.  And after all, if you buy the thing, can’t you just do whatever you want with it?  If you want to limit my right to do that, then by gum let’s bargain for such a limit.  (I guess that’s the difference between a “Judge Ponsor” and a “Judge Posner“!)

And yet I too have some sympathy, as a non-visual artist (i.e., “a face for radio”) who has tasted the bitter experience of having his own “work made for hire” simply put under another person’s name by the copyright holder (and no, the fact that it was a federal judge’s name, and the ABA that did it, did not make it any less bitter) when the collective work in question was reissued in a second edition.

I have sympathy.  I didn’t say I think it’s ok, ok?  I mean this is America.  We don’t need copyrights on our money and we don’t need statutes to protect the “honor” of creative types!  I think.  In fact if you read too much into “sympathy” I’ll accuse you of dishonor!  And we can duel.  Pistols at dawn!

Ah, yeah.  Well, this should be interesting, this moral copyright visual honor stuff.  Not that there’s anything wrong with that.