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David Powsner, a partner in Nutter's Intellectual Property Department, was quoted by Yahoo! Finance in “Twitter’s football video removals raise questions for all media” on October 13. The article highlights recent actions taken by two firms that specialize in policing copyrights online under the Digital Millennium Copyright Act (DMCA). The firms told Twitter to take down posts that included video clips of professional and college football games. 

DancingToddler_YouTube_DMCAThe U.S. Court of Appeals for the Ninth Circuit this week issued a decision with implications for owners of music and audiovisual works. The court ruled that copyright owners first must assess whether a use of their content is in fact lawful “fair use” before sending a takedown notification under the Digital Millennium Copyright Act (DMCA). Considering fair use involves a balancing of subjective factors, this newly-clarified requirement may make it logistically more difficult and time consuming for content owners to evaluate whether a use of their content discovered online qualify for takedown notices.

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Prior to March 2, 2010, the law was well settled that in order to enforce a copyright in court, the party bringing the claim must have a registration. Copyright standing is governed by Section 411(a) of the Copyright Act of 1976, which states that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” Accordingly, copyright infringement lawsuits would be dismissed for lack of subject matter jurisdiction if the plaintiff did not have a registration.

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In November 2013, a federal judge in the Southern District of New York dismissed a lawsuit against Google, Inc., finding that Google’s copying of print works in connection with its Google Books project represents fair use under 17 U.S.C. § 107. The Google Books project includes two main programs: a “partner” program, in which Google stores and displays material provided by book publishers or other rights holders, and a “library” project, in which Google digitizes the entire collection of a library to make its text available for search and other uses. Back in 2005, The Authors Guild, Inc., along with several individual authors, brought suit against Google for copyright infringement based on unauthorized copying that occurs in connection with the digitization of printed works. In the opinion, Circuit Judge Chin analyzed the alleged copyright infringement in view of several fair use factors laid out in § 107, including the purpose and character of the use of copyrighted material, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for the work. Judge Chin found that the Google Books project provides many previously-unavailable benefits to the public without superseding or supplanting the books themselves, and therefore held that any copyright infringement associated with the program represents fair use under the law. This decision highlights the ever-changing landscape of fair use—and copyright law in general—in the digital age. Practitioners dealing with fair use and other copyright issues should be mindful of the dynamic landscape surrounding copyright and digital media.

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Like everything else related to copyright in The Digital Millennium—which, let’s face it, we should start calling The Digital Eternity—the publishing concept of “out of print” (OOP) has been turned inside out (or maybe upside down, it is hard to say, maybe both).

The recent Supreme Court decision in Kirtsaeng v. John Wiley & Sons represents a significant victory for college students in their struggle with media companies over copyrighted media. In a 6-3 decision, the Supreme Court assented to college student Supap Kirtsaeng’s resale of textbooks in the United States that were bought in Thailand at low cost, reasoning that the Copyright Act does not create a right to divide foreign markets from domestic markets. Effectively, this decision establishes international copyright exhaustion, i.e., that the first sale of a copyrighted article, whether manufactured domestically or abroad, is sufficient to “exhaust” the copyright owner’s rights to that article.

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OK, let's go over it again—just because you hire and pay someone to write something for you, or to design a logo or a website, or to paint a portrait of the family dog, it does NOT mean that you own the copyright in the writing, logo, or canine portrait. You DO OWN the physical object you paid for, but you CANNOT make copies of it.

In Golan v. Holder (No. 10-545, January 18, 2012), the U.S. Supreme Court upheld § 514 of the Uruguay Round Agreements Act (URAA) which restored copyright protection to certain works of foreign authors that had previously been in the public domain. Users of foreign copyrighted works first published abroad between 1923 and 1989 will need to continue to assess their liability and decide whether they need to attempt to locate the owners of the restored copyrights.

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The recording industry is already reeling from the effects of the Internet -- illegal downloading of new releases has contributed mightily to a drastic reduction in industry sales in these early years of the Third Millennium.

Maximizing the protection and value of intellectual property assets is often the cornerstone of a business's success and even survival. In this blog, Nutter's Intellectual Property attorneys provide news updates and practical tips in patent portfolio development, IP litigation, trademarks, copyrights, trade secrets and licensing.

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