Shooter’s infringement claim fails to develop

Art student, school find fair-use shield for photo used in class assignment and posted on Flickr

Andy Warhol, Jeff Koons, Damien Hirst. These artists, and many others, have famously exploited existing images in their own works. While such “appropriation” operates in a gray area of copyright law, iconoclastic pop-artists remain undeterred.  And as aspirants follow their role models, it’s unsurprising that challenges arise—notably and recently in an an art class at the Watkins Institute.

Students at the Nashville school were given photos and asked to create a mock product ad. So, très, Warhol, right, and are legal eagles already seeing the court case brewing?

Fortunately for the school and the student, both of whom ended up as defendants in the recently decided copyright infringement case Reiner v. Nishimori, some sorta ivy tower defenses came to their rescue. Let’s focus on academic fair use and its role in this visual controversy, shall we?

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Congress takes aim at nation’s copyright chief

Lawmakers advance measure to strip Librarian of Congress of power to appoint copyrights Register, giving authority, instead, to the president, with congressional assistance

Congress is sending a rebuke to the bureaucrats who run a system that’s critical to Entertainment Law: The House has passed and sent to the Senate a proposal to strip The Librarian of Congress of the power to appoint the Register of Copyrights, giving that authority, instead, to the president.

HR 1695, the Register of Copyrights Selection and Accountability Act,  has passed the House Judiciary Committee in a 27-1 bipartisan vote, and it has advanced out of the House in a 378-48 vote. It now rests with the Senate Rules and Administration Committee.

Whether it goes beyond, it has become the legislative equivalent of baseball’s brush-back pitch, with lawmakers expressing some degree of displeasure with the nation’s copyright administrators—and creating a colloquy over how this potential change might affect innovators and creators.

How did this tussle blow up? (more…)

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Champs’ publicity-rights claim slapped down

With federal copyright laws holding sway, online sales are acceptable of prized photos of basketball players, their games, appellate judges find

Patrick Maloney, a hot-shooting guard who helped catapult his 2001 team to Catholic University’s first-ever Division III national championship, has become a school legend for his elite decision-making on a basketball court.

But he, teammate Tim Judge, and other Cardinal players made bad calls in courts of law when they and their attorneys sought to contest a decision by their alma mater, the NCAA, and an online vendor, T3Media and its Paya.com website, to allow the public to download pictures of them and their games, especially their now 16-year-old upset victory over William Paterson at the Salem (Va.) Civic Center, a federal appeals court has decided.

On behalf of themselves and other college jocks, Maloney, Judge, and other CU Cardinals had asserted that state right-of-publicity laws gave them a say about the uses of the disputed shots, and, more importantly their likenesses and identities.

But the U.S. Court of Appeals for the Ninth Circuit, in Maloney v. T3 Media, Inc., cried foul, blowing the whistle under First Amendment-protecting anti-SLAPP statutes, and finding that the Federal Copyright Act pre-empted their state publicity rights claim. Here’s an instant replay of how these ballers lost this key round of their legal game. (more…)

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Oh, no, you don’t: Infringement claims revived

Appellate judges say trial, facts needed to determine if web service’s claim for ‘safe harbor’ undone by ‘volunteers’ moderating celebrity content

Celebrity content has sprouted online on gossipy sites like spring wildflowers after California’s heavy winter rains. But will the courts douse the untrammeled enthusiasms for these enterprises by finding that businesses that host and support such web venues may have limits to “safe harbors” they might seek from infringement claims in the Digital Millennium Copyright Act?

The U.S. Court of Appeals for the Ninth Circuit has fired a warning shot to online service providers about the limits of their legal protections, particularly when people connected with them play roles in moderating stories or pictures about famous folks of the moment.

In a closely watched case, the appellate judges gave new life to infringement claims by Marvix Photographs, a company specializing in celebrity gossip (i.e., paparazzi) images, and potentially other content creators. This ruling raised big questions about the content practices of online platforms, notably LiveJournal, Marvix’s defendant and a blog-hosting powerhouse. The case also wraps in elements like editorial judgement and revelations about a diva’s pregnancy. What’s the hot legal scoop here?

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Is an icon’s image too generic to trademark?

Bitter battle by Marilyn Monroe estate to protect her legacy may have unforeseen consequences for celebrities

It’s common these days for celebrities to trademark their names and properties attached to them (yes, you Beyonce, and all of you in the Kardashian clan). Her estate has tried to create comparable legal protections for Norma Jean Mortenson, the sliver-screen legend better known as Marilyn Monroe.

But a U.S. District Court in Manhattan has cast a long shadow over the movie star’s intellectual property rights, raising the possibility—not just for her and her estate but for other pop culture icons —that a megastar like Monroe may be too generic for protection.

The issue is far from decided, and, in a 51-page opinion and order, U.S. District Judge Katherine Folk Pailla has observed that, “What began in 2012 as a declaratory judgment action has transmogrified into a sprawling conflict raising issues of trademark, antitrust, and state business law.”  So, as Marilyn herself might aver: Sugar, what’s behind this Monkey Business that could Shock Miss Pilgrim, in which Something’s Gotta Give, some parties don’t seem to be Gentlemen [who] Prefer Blondes, and, the court hopes, won’t turn into a Seven Year Itch?

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