Tag Archives: Copyright Law

Copyright’s absolute liability?

Originally posted 2009-08-18 13:58:00. Republished by Blog Post Promoter

Michael Ratoza of U.S. IP LAW reports (via @BeelJDPhD) on a case that issues a somewhat stunning ruling for those of us, such as LIKELIHOOD OF CONFUSION®, who have never really thought about the question of common-law indemnification for copyright infringement — or, worse, who have thought about it a little and assumed it must exist.

128298583190782500copycatIt doesn’t.  Maybe.

The story:  A builder was sued for copyright infringement for selling a house constructed on plans it had purchased from a third party but which, it turned out, had in fact been copied, without permission, from another set of plans which happened to have been protected by copyright owned by a competing developer.

In attempting to defend itself, the builder brought indemnification claims against the seller of the counterfeit plans. He argued that the seller committed fraud and misrepresentation in selling plans that the seller knew were wrongfully copied. The court dismissed the indemnification claims because there is no right of indemnity for copyright infringement.

The court pointed out that there is no indemnity right included in the Copyright Act, and that the Copyright Act preempts conflicting state law. As such, state indemnity law does not apply. In any event, it is federal common law, not state common law, that applies in a copyright proceeding. Federal common law is very limited and does not include the right of indemnity for violation of federal law.

Outside of the building context, this case raises anew the obvious problem faced by the buyer of goods that turn out to be counterfeit. How can the innocent buyer of counterfeit goods protect itself from liability when the seller fails to disclose that the sold goods were wrongfully copied?

And sellers usually will fail to disclose that sort of thing, after all.   Maybe.

I found this language a little odd:

The court pointed out that there is no indemnity right included in the Copyright Act, and that the Copyright Act preempts conflicting state law. As such, state indemnity law does not apply.

Well, wait.  If there is no indemnity right, there is nothing to preempt, is there, unless the Copyright Act explivity forbids indemnification (which it does not)?  It turns out, in fact, that I’m not the only one who sees it this way:

Unlike claims of contribution, courts have upheld state law claims for indemnification, arising out of state common law or statute. In Foley v. Luster,249 F.3d 1281 (11th Cir. 2001), the Eleventh Circuit upheld against a preemption argument, a state common law claim to indemnification. As with contribution claims in copyright cases, the right of indemnification was asserted as a cross-claim. After the plaintiffs settled , the cross-claim went forward, with a jury finding indemnification was required. A post-trial motion to dismiss on the ground of preemption was filed and denied. The Eleventh Circuit affirmed the denial, holding that the extra element test for preemption did not apply, allegedly, because indemnification “does not concern the rights of a copyright holder. Rather, it concerns the allocation of responsibility between copyright infringers.”  But that is true of contribution too, the right to which has been held preempted. . . .

This does not mean, however, that the right to indemnification for paying infringement damages is preempted. It is my opinion, such a right is not preempted because the right or remedy is not equivalent to any granted under the Copyright Act and does not arise under the Copyright Act: once payment is made to the copyright owner, the federal interest in extinguished.

That’s not just any opinion out there, disagreeing with the Eleventh Circuit’s rationale but agreeing with its holding — it’s Bill Patry‘s.

So, the case I first thought Michael was writing about was KBL Corp. v. Arnouts, 2009 WL 302060 (S.D.N.Y. 2009), from February of this year (opinion here).  Interestingly, the court there disagrees with Patry’s link between contribution and indemnifiction, citing Conrad v. Beck-Turek, Ltd., Inc., 891 F.Supp. 962, 966 (S.D.N.Y.1995), and after dispensing of the contribution argument analyzes the indemnifcation on its own merits.  But its rationale in denying indemnification is based on a peculiarity of New York indemnification law: Read More…

Follow the dancing baby

It is huge. Here’s the New York Times‘s coverage; here’s the Wall Street Journal; and here’s the actual 9th circuit opinion in Lenz v. Universal itself.  Everyone is explaining why the deal is so big, of course.  The key question was this:

Section 512(c)(3)(A)(v) requires a takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The parties dispute whether fair use is an authorization under the law as contemplated by the statute—which is so far as we know an issue of first impression in any circuit across the nation.

This is the offending video. 

Fair use or not?   And the answer to the question is this:

We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. Fair use is not just excused by the law, it is wholly authorized by the law. . . . Although the traditional approach is to view “fair use” as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.

That sounds right to me.  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 Amazon.com. 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…

Manchester Cathedral, you’re driving me crazy

Originally posted 2007-06-14 11:42:55. Republished by Blog Post Promoter

Manchester Cathedral, Winchester Cathedral — same thing. We’ve written in the past — well, not us, there is only just me here; sorry — about the dubious concept of trademark rights in building exteriors. Now Bill Patry writes about a proposed copyright lawsuit by the Church of England, which does not object to violence against Jews, who have it coming to them, but gets the vapors over virtual gunfights being depicted in its magnificent hallowed (and hollow) halls:

Manchester Cathedral

Various UK sources ran stories yesterday about the Church of England’s pique over Sony’s Playstation 3 alleged replication of the interior of the Manchester Cathedral as a dropback in a gunfight in the game “Resistance: The Fall of Man. (HT to Bruce C. in the frozen north). Andrew Mills has a fantastic, very detailed piece on the story, here, including a YouTube link to the sequence in question.

The Church of England has threatened to sue Sony after the Japanese company used Manchester Cathedral as the backdrop to the gunfight in the PlayStation 3 game Resistance: The Fall of Man.

It could have a case, lawyers say.

In general, [however], the outside of a well-known building is not considered to be protected under the law, Tom Frederikse, an intellectual property specialist with Clintons, the law firm, said.

Patry points out that under Section 120(a) of the Copyright Act, U.S. law, which does protect copyright in archtectural works, nonetheless explicitly permits “the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” He notes that the question of whether the interior of a building could be “ordinary visible from a public space” is one he had not considered, and he’s considered a lot. Of course the building is publicly accessible, as he points out, but it seems a bit churlish to reward the building’s owner for making its space accessible by deeming that space itself “public” and thereby denuding him of rights he otherwise would have.

Well, that’s American law, anyway. Read More…

Goldman on Ticketmaster

Eric’s Technology & Marketing Law Blog asks whether “the public interest got screwed” in the recent big win for Ticketmaster down in Alabama against RMS, a company whose software outsmarted Ticketmaster’s sales system. Copyright infringement was a lynchpin of the holding.

Ticketmaster-LogoI was once consulted on a similar case and I was hoping that it was that same former client that lost this one — because the son of a gun stiffed me on my fee! But because of that experience and the analytical framework I ended up working through while considering similar issues, I’m sympathetic to the defendant there, and to Eric’s take on it, too:

It’s easy to point at RMS and its customers as the bad guys. After all, they are trying to get an unfair advantage in the first-come, first-served allocation of scarce tickets for their economic benefit, with the result that later comers have to pay more to get the same tickets.

But what about Ticketmaster’s role in this situation? They haven’t designed a technologically gaming-resistant allocation of tickets, so they need legal help to solve that deficiency. I also remain suspicious about Ticketmaster’s incentives here, both in setting prices and in policing against ticket allocation gaming. Their motives may not be nearly so consumer-friendly as they try to portray.

Well, no company is as consumer-friendly as it likes to portray itself. But Ticketmaster? Go ahead and Google it. It’s not pretty. On the other hand, is a company really obligated to “design[] a technologically gaming-resistant” business model before it can have recourse to the law to enforce its rights? I don’t think Eric means that, either. Read, as they say, the whole thing, though.

Best of 2009: They always get their man

Posted November 24, 2009.

Dudley and SnidelyYes, people do have some funny ideas of what kinds of things to protect with copyright, don’t they?   A few years ago, criminal enterprise Milberg Weiss (in its pre-conviction days) tried to assert copyright in its own specie — the legal papers it filed to generate kazillions in crooked class-action fees — and not so unreasonably (hmm…).

Anyway, it seems that certain countries, though not as wealthy as Milberg Weiss, nor nearly as scurrilous (indeed, arguably cordial to a fault!), have figured, if an American law firm can try to claim copyright in its own money, why can’t we?   Why not indeed?

And so we read of a vacation. “To experience the full excitement of traveling abroad,” writes Eric E. Johnson,



you’ve got to have a pocket full of unfamiliar money. Never mind that their pennies, dimes, nickels, and quarters look almost identical to U.S. coins. And put aside the fact that the exchange rate right now between the U.S. and Canada is almost exactly one-to-one. I was still excited to use different cash.

Inspecting the colorful bills, I got a delightful surprise: a copyright notice!

Read More…

Best of 2009: The DMCA and the search engine

DMCA 1998Posted on August 6, 2009.

Traverse Legal:

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.



That’s worth checking out.  How does it work?  As Mary writes,

[R]ather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

You can just imagine the bells going off in my head when I read that formulation.

Read More…

Best of 2009: “Infinity Dollars” — IP damages and the jury, Part 1

JuryA lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about.  They are not supposed to be a windfall (discussed more here).  But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.

I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:


In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.

As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.

Read More…

Best of 2009: Properly classified — there’s no “significant doubt”

US President Barack Obama gestures for the crowd to keep quiet about his visit to the O&H Danish Bakery to buy kringle pastries so that First Lady Michelle Obama wouldn't find out about the visit, during a town hall event on the economy at Racine Memorial Hall in Racine, Wisconsin, June 30, 2010. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Photo: SAUL LOEB/AFP/Getty Images

CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers”national security.” Er, what?

Good question, Instapundit.  Click through — the original story is here, at Wired.  The reference is to the so-called Anti-Counterfeiting Trade Agreement, or ACTA.

But you can really see all you need to see by reading the letter from the Administration responding to a Freedom of Information Act request for disclosure of this information about a copyright treaty by stating that the documents the documents you seek are being withheld in full pursuant to 5 U.S.C. sec. 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.



Well, good to know they’re being properly withheld!

But can this truly be the case?

Here’s what that Clinton-era Executive Order says (in part) about what shall and shall not be deemed classified (emphases added): Read More…

Best of 2008: Someone dropped in an extra zero, right? RIGHT?

Posted on October 16, 2008.

It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now.  Per the ABA Journal, remember the Bratz litigation?  Well, you haven’t read half of it yet:

Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the case.

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc. that contended the doll’s designer conceived of the idea before leaping from Mattel to MGA, the Daily Journal reports (sub. req.). Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

Mattel was awarded $100 million in the case, far short of the more than $2 billion in damages it had sought.

The Daily Journal got MGA’s figures in a lawsuit it filed against its insurers seeking full payment of the Bratz fees, while the publication got the Mattel figure from a stock analyst.



The ABA item quotes a Jones Day litigation partner who is flummoxed at the idea that there is any conceivable way to get to $93 million for a trademark case, even over the course of four years.  We sure are, too.  And re-read this ‘graph: Read More…

Best of 2006: Who owns the copyright in scans of public domain works?

First posted on May 7, 2006.

I love Plan59.com. If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane.

Rockwell copy copy copy

Great metaphor. Probably not great fair use.

I would use the graphics from Plan59.com every day if I could, but I don’t have their permission. On the other hand… whose graphics are they, really? They put it this way:

PLEASE NOTE: The images on this site are embedded with an invisible digital watermark and IPTC metadata. Are you free to scan and market images out of that nifty 1936 Hupmobile brochure you got at the flea market? Yes, if it was published without a copyright, or if the copyright has expired. Is it okay to use the images we’ve made from the same catalog? Ahem, cough. We own the scans we’ve made—they represent a considerable investment in equipment, source materials and labor over the past five years. Every jpeg and gif on this site is copyrighted and marked as belonging to us. Please, no borrowing without getting permission.

10 Years of Bloggy Ok-Ness

10 Years of Bloggy Ok-Ness

Hmm. What they’re saying is that the Hupmobile image is in the public domain, but that they have made a new, derivative work from it by virtue of their “considerable investment in equipment, source materials and labor.” Well, that sounds fair. If they thought they couldn’t protect their work, they probably wouldn’t have gone through the trouble. But does it comport with copyright law?

Read More…