Archive for the ‘Copyright’ Category

Ask Dr. Copyright …

Tuesday, September 30th, 2014

copyright question

Dear Doc:

I read recently that music stars Robin Thicke, Pharrell “Hat” Williams and Clifford “TI” Harris Jr. have sued the late Marvin Gaye’s kids. Thicke and his buddies, according to the news, claim that they did not steal parts of Gaye’s song “Got to Give it Up” in the hit from a year ago called “Blurred Lines” and they want a judge to say so, too. Of course, the Gaye kids have countersued (doesn’t everyone?) So what gives, and what about the deposition that Thicke gave in the case?

Signed,

Thicke and Tired of Dumb Litigation

Dear T&T:

You’ve got the facts basically right. The Gaye kids said in public that Thicke et al. (that’s lawyer talk for “all y’all”) misappropriated (that’s lawyer talk for “done ripped off”) certain musical elements of “Gotta Give it Up”,¬†Gaye’s blockbuster 1977 hit. The Gaye kids claim that “Blurred Lines” is an infringement of their copyright in their dad’s song (and to make matters legally complex, they don’t own all of the copyright rights, just some of them.)

Courts decide these kinds of cases by comparing the two compositions, and trying to figure out if one is either a direct copy of the other, or whether the writers of the allegedly infringing music had access to the original, and produced another composition that is “substantially similar” to the original. Such determinations are often made with the help of expert witnesses (musicologists) who discuss the structure of the musical components (bass lines, melodies, rhythms, etc.). Then it’s up to a jury to sort it all out.

During his deposition in the case last April, Robin Thicke was a textbook example of how not to give testimony. He complained about having to listen to a “mashup” of the two songs, saying, “It’s like nails on a f-ing chalkboard. … This is [like] Stanley Kubrick’s movie Clockwork Orange. Where he has to sit there and watch … Mozart would be rolling in his grave right now.”

Thicke was asked about an interview that he gave to GQ Magazine in which he said, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.” Thicke replied that he, “had a drug and alcohol problem for the year” and “didn’t do a sober interview” (full transcript).

Thicke was then asked about the song:

“Q: Were you present during the creation of ‘Blurred Lines’?

Thicke: I was present. Obviously, I sang it. I had to be there.

Q: When the rhythm track was being created, were you there with Pharrell?

Thicke: To be honest, that’s the only part where – I was high on Vicodin and alcohol when I showed up at the studio. So my recollection is when we made the song, I thought I wanted – I¬† – I wanted to be more involved than I actually was by the time, nine months later, it became a huge hit and I wanted credit. So I started kind of convincing myself that I was a little more part of it than I was and I – because I didn’t want him – I wanted some credit for this big hit. But the reality is, is that Pharrell had the beat and he wrote almost every single part of the song.”

Remember, this is just a deposition. Whether that testimony ever makes it in front of a jury, and whether they determine that there has been copyright infringement is still in the future. For now, though, the lesson of the case for the “Doc” is very un-blurred. Before you give a deposition, know your lines, and before you go into the studio, try to be clear. Oh, and try not to throw your friends under the litigation bus if you can by being truthful and cooperative.

Until next time,

The Doc

— Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Friday, August 29th, 2014

copyright question Dear Doc:

What do an elephant, a monkey, and the United States Federal Government have in common?

Signed,

The Riddler

Dear Riddler:

The answer to your query is: none of them can own copyrights! (Bet you didn’t see that one coming! BIFF! POW! BAM!!)

Under federal copyright law (17 U.S.C. ¬ß101 et seq.) works created by the federal government cannot be protected by copyright law – the taxpayers paid for it, so we all get the right to use it. For entirely other reasons, non-human animals cannot be authors, and there is no copyright for what they create – it’s also in the public domain. Now, I know what you’re thinking…if corporations can be authors under federal law, and can author works in which they own copyright, what sense does it make to say that highly intelligent, not to mention cute elephants that paint wonderful watercolors, and monkeys who are photographers can’t be legal authors? Besides, how do we KNOW that monkeys don’t have copyrights?

Well “Rid”, in 2011, photographer David Slater had his camera taken by a very self-aware monkey in Indonesia. The monkey snapped a “selfie” which later made its way into the web site Wikimedia Commons. Here’s the photo in question:



When Mr. Slater wrote to Wikimedia, demanding that it remove the photo, their response was, in effect, “monkeys don’t have copyrights, so the photo is in the public domain, and we don’t care that it was your camera.” That may sound harsh, but the United States Copyright Office, in a recently-published proposed guideline said the same thing:

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit. Examples: A photograph taken by a monkey. A mural painted by an elephant….

It turns out that the legal justification for this policy is, “The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” (ZAP!) – So…it turns out that the reasoning IS the same! When was the last time that you thought that there was even a shred of “creative powers of the mind” in the government?

It may yet turn out that animals (at least smart ones like dolphins) have “creative powers of the mind”. That would certainly make a monkey out of the guys at the Copyright Office.

As Douglas Adams wrote in “A Hitchhiker’s Guide to the Galaxy,”

…on the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much-the wheel, New York, wars and so on-whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man-for precisely the same reasons.

So…if you have a talented pet that is especially creative, I suggest that you do what all great teachers do: take all the credit. Then call an attorney at LW&H to register copyright, but don’t dare tell them that your Norwegian Blue is the author. After all, the plumage don’t enter into it! (Just kidding!)

The Doc.

— Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Thursday, July 31st, 2014

copyright question Dear Doc:

Seems to me that us vegetarians don’t get no respect in court. I heard that “Lettuce Turnip the Beet” got ripped off by that infamous pirate and parachute flapping no-good Gymboree Corporation, and the judge wouldn’t lift a finger to help.¬† What gives?

Signed,

Rootin’ for the Little Guy

Dear Little Root:

Since 2011, Elektra Printz Gorski (wow, say THAT three times fast!) has sold T-shirts bearing the phrase, “lettuce turnip the beet” to people who, it seems, like to confuse small children with homophones (and don’t get me started on equal rights, or there’s gonna be a rumble…) She sold these clothes in the the SoHo neighborhood of New York, and on line at etsy.com. (By the way, SoHo is a contraction of the terms “So…Hope You Can Afford to Shop Here”, but the Doc digresses.) Gorski registered a copyright in her phrase, as well as two trademarks for it.¬† Gorski said that, “Gorski’s light grey heather shirt for children is widely considered one of the most popular children’s products ever pinned on Pinterest under their ‘Popular’ heading and has over 120,000 product views on Etsy making it one of the most popular products ever on Etsy.” Wow!

Then, quicker than you can sing “Gymbo the Clown Goes Up and Down” 731 times, the Gymboree Corporation starts selling shirts that say, you guessed it, “Lettuce Turnip the Beet”. Of course, Gorski sued. Gymbo moved to dismiss claiming that you can’t protect an “arrangement of a short phrase”.

Judge Lucy Koh, the same judge who has ruled on the giant law suits between Apple and Samsung that have involved over $1 BILLION DOLLARS in damages, ruled, at least in part, for Gymboree. Seems that copyright can’t protect just a few words – although how many is enough is not spelled out in her ruling.

On the bright side for Gorski, she also has two registered trademarks, and Judge Koh did not dismiss her trademark claims against Gymboree, finding that any defenses it may have are premature at this stage of the case.

The Doc certainly can sympathize with all the vegetarians out there. In fact, one of the Doc’s favorite revolutionary anthems supports vege-civil disobedience. If you, too, have a short phrase that you wrote on a slip of paper and mailed to yourself, thinking that you now have a copyright, be sure to speak to one of the attorneys at LW&H. They will gently tell you that you’ve wasted a stamp, and help you to get actual legal protection for your products.

Let’s “ketchup” next month.¬† Until then, I remain your libertarian, nonsectarian, vegetarian (well, except for the occasional 42 oz. porterhouse) friend.

The Doc.

— Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Saturday, June 28th, 2014

copyright question Dear Doc:

Ever since you wrote about Aereo, the company with bazillions of tiny TV antennas and video recorders, I have been waiting for them to come to my town, so that I could get a decent television picture (no more of that digital BRAAAAP every 16 seconds unless I stand next to the TV holding up the antenna like some version of Lady Liberty!) What’s this I hear about six old folks deciding to shut down this wonderful service?

Signed,

My Arm Is Getting Really Tired

Dear MAIGRT:

On June 25, by a 6-3 majority, the Supreme Court decided that Aereo’s service violated the copyrights of the broadcasters. Now, I have to say that the Doc is having a hard time understanding this ruling. As I wrote in a past article, it seemed under the decision in the Sony Betamax case, that Aereo was just doing the same thing as having a videotape recorder: allowing a consumer to receive a free, over-the-air broadcast using an antenna, recording it, and playing it back later for herself. The difference was the location of the antenna, recorder, and screen. In 1976, the antenna was on your roof, connected by a 50′ wire to the recorder in your den, which was then connected by a 10′ wire to your TV. For Aereo, the antennas were on a roof somewhere (but not yours), connected to the recorder by the Internet, which was connected to your screen (TV, computer, tablet, or smart phone) also by the Internet. Like phones (which used to use long wires, and now use the Internet) and faxes (same), and movie rentals (your car going to Blockbuster, now Netflix over the Internet)… well, you see where this is going.

Nope! Not so fast. The grandmas and grandpas on our Supreme Court have just stepped onto the porch and yelled at Aereo to stay off their lawns. The majority expressly said that because Aereo’s system appears to be similar to a cable television system, that’s good enough. Never mind that the system does nothing until a subscriber “tunes” in a program, and never mind that each antenna and recording is individual and private. If it looks like a duck…shut it down.

As the Court said, “why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. … Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?”

The three dissenting justices think that these things do matter. They term the majority’s approach “Guilt By Resemblance” but as they are the minority, the public is left to wonder what will become of Aereo. The company’s founder, Barry Diller, who also started the Fox Network, said that it’s, “Game Over”.¬† Score another one for big business.

One thing, however, is true: more and more people are “cutting the cord” and refusing to subscribe to cable television services. The next few years will be bumpy, but in the end, innovative services like Aereo are likely to prevail. Broadcast television started out as a public trust, using the public airwaves. Anyone was free to receive the signals. Broadcast television, operated in the public interest is dying. That seems to be fine with the cable companies. It seems to be fine with the FCC. The Doc likes a good book, anyway.

Interested in innovating new services? Talk to the attorneys at LW&H. They receive, store, and respond, without engaging in unauthorized public performances.

— Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Friday, May 30th, 2014

copyright question Dear Doc:

I have heard that the music and movie industries want Congress to add a new part to the Copyright Law, one that would say that it is a violation of a copyright owner’s rights to “make available” a copy of a work, even if the copy is never accessed by anyone. What gives?

Signed,

Marian the Librarian

Dear Marian:

Here at the Gary Conservatory of Copyright, we were taught that copyright protects authors, songwriters, and other creative types from the evils of people taking their work without paying for it (literally, that the creators control the right to copy.) How wrong our professors turned out to be!¬† You see, Congress has been adding more and more “exclusive rights” to the Copyright law for many years. Section 106 of the law (17 U.S.C. ¬∂106) lists six separate rights: (1) to reproduce …; (2) to prepare derivative works …; (3) to distribute … by sale or other transfer of ownership, or by rental, lease, or lending; (4) …to perform the copyrighted work publicly; (5) … to display the copyrighted work publicly; and (6) …to perform … by means of a digital audio transmission. This system of rights has grown up over the years as owners of works saw that technologies made new kinds of value possible. They have gone to Congress with an argument of, “if value, then right” and Congress, sensing that large campaign contributions might be involved, has usually gone right along with them.

Of course, some legal scholars have argued that the Constitutional mandate for Copyright, found in Article I, Section 8, Clause 8, is supposed, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They have made this argument, most recently to the Supreme Court, in trying to say that you can’t achieve this goal by stretching the term of copyright protection to far beyond the life of the author (since you can’t promote her doing anything about progress after she’s dead.)¬† Sadly, the Supreme Court just punted by saying (if you can believe this) that Congress knew what it was doing when it extended the term to life plus 70 years in the “Mickey Mouse Copyright Extension Act” (for a very complete history, click here)

Now, the recording and movie industries, together with other publishers, want a new right that they claim arises from international treaties that the United States signed a few years ago: the “making available” right. Recent court decisions in cases about Internet file sharing have required that the plaintiffs show that files were actually downloaded from the defendant’s computer (thus running afoul of the “reproduce” and “distribute” rights, if not some of the others.) The trouble, say the RIAA and MPAA, is that they should not have to prove this, because peer-to-peer software, such as BitTorrent, makes it hard to prove. Just putting a file into your shared folder on your hard disk should be enough, according to industry lawyers. Some cases also back them up. In one such case, penalties were handed down for just putting a book on a library shelf, even though there was no evidence that the book was ever checked out, or even taken from the shelf and read.

One of the dangers of doing away with proof of actual downloading is that it may exacerbate the problem of copyright porno-trolls. What, you ask, is a porno-troll???¬† Porno-trolls are companies that produce and own the copyrights to pornographic videos, and that sue people who they believe have downloaded such videos for copyright infringement. They usually sue a number of unnamed defendants (called the “Does” after that well-known defendant, John Doe and his significant other, Jane.) They usually offer to settle for a sum of money, and in return agree to a confidentiality provision that keeps the real name of the Does secret. Since most Does would rather not have their taste in video entertainment made public, this is a very successful business model, and one company, Malibu Media, filed almost one-third of all copyright law suits in the United States last year. For the full story, click here. Some courts defend this practice as legitimate, but other judges have been critical of the scheme.

So, Marian, that is why the Doc went to Washington, DC this month to testify at a Copyright Office meeting about this “making available” change to the copyright law. It’s complicated stuff, but in the end, the Doc thinks that Copyright has gotten out of hand, gone off the rails, and that the inmates are running the copyright asylum. What’s the chance that the Doc’s view will prevail? Hard to say, but at the meeting, there were a handful of folks saying that this needs a lot of careful thought, and dozens of lawyers from record companies, copyright troll companies (see last month’s column on that), the movie industry, and others, all demanding more rights and easier standards for winning law suits. The Doc does not condone any kind of copyright infringement, but when we have a law that is out of step with both ordinary behavior of citizens and with its foundational principles, something’s wrong. The Doc thinks we need to address that, rather than making it more wrong.

Until next month, if you have a copyright question, or get a threatening letter from Malibu Media (oops!), talk to one of the attorneys at LW&H… they eat this stuff for breakfast.

— Lawrence A. Husick, Esq.

“Raging Bull” and “Stairway to Heaven” — Old But Not Forgotten

Friday, May 30th, 2014

Supreme Court This week, the United States Supreme Court issued an opinion of great importance to those wishing to enforce their copyrights. In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court clarified confusion among lower courts about whether the doctrine of laches (also known as unreasonable delay) could bar a lawsuit for copyright infringement.¬† While the court’s opinion may read to lay persons as legal mumbo-jumbo, it is of significant importance to copyright owners.

In Petrella, the copyright owners of the screenplay for “Raging Bull,” the movie directed by Martin Scorsese in 1980, sued MGM for damages resulting from the studio’s infringement.¬† Surely, you may ask, MGM had rights to the screenplay.¬† Well, at one time it did.¬† Petrella’s father and his co-author boxer, Jake LaMotta. assigned the rights to MGM, which registered the copyright in 1980.¬† However, when Petrella died in 1981, by law, the rights reverted back to his daughter.¬† MGM failed to obtain the rights after that event.¬† Petrella’s daughter waited until 2009 to sue the studio.¬† Because of her delay, MGM argued that her lawsuit is barred by the doctrine of “laches” or unreasonable delay.¬† The lower courts agreed but not the Supreme Court.¬† The Supremes held that laches was irrelevant to infringement, which is controlled by a three-year statue of limitations, and Petrella had a right to sue for any infringements – of which there were many – that occurred within the three-year period preceding her filing of the lawsuit.

During the same week that the Supreme Court handed down this decision, we also learned that the estate of Randy California, guitarist in the band Spirit, is suing Led Zeppelin for copyright infringement, claiming that the one of the greatest rock songs ever written, “Stairway to Heaven” uses riffs that California wrote for an instrumental called “Taurus.”¬† Stairway to Heaven was written in 1970, two years after Led Zeppelin and Spirit “shared stages” together during their U.S. tour.¬† Regardless of the lawsuits merits, it would appear that the estate of Randy California unreasonably delayed its lawsuit, particularly since it has been bandied about for years that Jimmy Page, the author of Stairway to Heaven, stole the opening riff from Randy California.¬† After Petrella, however, the 40 year delay does not appear to be a hindrance.

— Adam G. Garson, Esq.

Ask Dr. Copyright …

Wednesday, April 30th, 2014

Ask Dr. Copyright

copyright question Dear Doc:

I write the songs that make the whole world sing. Unfortunately, with all that songwriting, I really don’t have the time to listen to every radio station that plays my songs, every online store that sells them, and every band, chorus, glee club, and lounge act that covers them so that I can collect royalties. I have heard that there are organizations that will do all of that for me, and even sue people who don’t pay up. What gives? I thought that “trolls” were the bad guys, but this sounds like just what us musicians need in order to make a living.

Barry M.

Dear BM:

The organizations you’re referring to are called “Artists’ Rights Organizations” (AROs) and there are three big ones: Broadcast Music Inc. (BMI), American Society of Composers, Authors and Publishers (ASCAP) and the Harry Fox Agency (HFA). Each one of these companies is a nonprofit that licenses, collects, and distributes royalties on behalf of musical copyright owners. BMI and ASCAP license public performance rights to venues such as concert halls, bars, restaurants, stores, etc.. HFA licenses “mechanical” rights, which include the right to make CDs, records, tapes, and certain digital products. In addition, there are more than 200 similar organizations worldwide, and many have reciprocal agreements with one or more of the US-based AROs. Not to confuse you more, but record labels also license rights, and they have their own organization, the Recording Industry Association of America (RIAA).

It’s interesting to note that none of these companies writes any music at all! Nor do they arrange it or perform it. They just collect the royalties, and when someone refuses to pay up, they bring law suits, relying on the Copyright Law (17 U.S.C. ¬ß101, et seq.) which provides, among other things, that they can collect attorneys’ fees, and ask for statutory damages of up to $150,000 per song played or copied. But, I hear you shout, “Last month, Doc, you told us that this is pretty much exactly what companies that are being called “patent trolls” do with patented inventions! They don’t invent widgets, and they don’t make the widgets…they just offer to license patent rights, and when someone refuses to pay the royalty, they bring a law suit in which they demand a ‘reasonable royalty'”.

Yep…exactly! So there you have it. AROs are respected for the work that they do to help musicians make a living by licensing rights, collecting royalties, paying artists, and policing the use of the rights by using the legal system. They are important because, to quote the ASCAP website, “We know that there are many steps between creation and compensation. A music creator is like a small business, and we exist to ensure that ASCAP members are paid promptly and fairly when their compositions are performed publicly.” Now, to quote one “patent troll” website, “Patent licensing can be an effective and efficient way to maximize the profit potential of a patent. A patent license agreement grants a third-party user of the invention (an infringer) permission to practice the patented invention in exchange for remuneration.”

So there you have it. Patent trolls: BAD. Copyright trolls: GOOD.  Go figure!

If you have a question about how to license your intellectual property, give one of the attorneys at LW&H a call. They’re not trolls, but they do understand how to help creative people protect and profit from their creations, whether they are widgets, music, or some other wonderful new thing that will be the next hit.

Lawrence Husick, Esq.

Ask Dr. Copyright …

Sunday, March 30th, 2014

copyright question Dear Doc:

A magazine editor has told me that if a magazine releases an issue before its copyright date, the magazine will lose its rights. I can’t believe that this is the law. Please tell me who’s right.

Signed,

Confused Author

Dear Confused:

You’re less confused than your editor! Under international copyright law, known as the Berne Convention (no, it’s not a meeting of arsonists) a “work” is protected by copyright automatically from the moment it is created. There are no complicated rules. Most countries, including the United States, are a part of this treaty, so copyright protection extends to most of the world in this way.

Each country is still allowed to create its own rules in addition to those of the treaty, so, for example, in the United States, even though you have an automatic copyright, you must register your work in the Copyright Office of the Library of Congress in order to enforce your rights in court, and there are other benefits of early registration as well. Registration is a simple process, and the fee is quite low. You may not, however, just send yourself a registered letter! (That is as legally effective as shaking a rattle to cure the flu.)

Under U.S. law, you may put a copyright notice on your work to show the world that you have rights. The law says that this notice is ¬©, the year of creation or publication, and some identifier of the copyright owner. You may also use the word “Copyright” or the abbreviation “Copr.” You may NOT use a ( C ) – that’s not part of the law. Under the laws of some countries, it also helps to use the phrase, “All Rights Reserved.”

Copyright extends to more than just written works, as well. You can protect music, video, computer code, works of visual art, and even performances. Each type of work has its own rules and registration forms, so be sure to check www.copyright.gov and with your IP counsel for the right information. Registering copyrights should be an automatic part of the business process for just about every business.

When it comes to simple and effective protection of intellectual property, you just can’t beat copyright. By now, the Doc knows that you have lots more questions. Just call one of the attorneys at LW&H. They do copyright, trademark, patent, trade secrets, and lots of other stuff to protect rights of creative endeavors.

The Doc

–Lawrence A. Husick, Esq.

Lamps, Belt Buckles, and Hookahs — the Limits of Copyright Protection

Friday, January 31st, 2014

Copyright Question

You may already know by reading this newsletter that utilitarian objects are typically not protected by copyright law.¬† Fashion designs are but one controversial example.¬† Here’s a little more history.¬† In the 1950’s, the Supreme Court of the United States in Mazer v. Stein, held that statuettes incorporated into lamps – unarguably utilitarian objects –¬† were the proper subject of copyright protection in so much as the artistic component (the statue) was separable from its utilitarian function (the lamp).

lamp statue

Of course, it’s not always easy to separate the artistic from the utilitarian components of an object.¬† The U.S. Court of Appeals wrestled with the problem in Kieselstein-Cord v. Accessories by Pearl, Inc., when it considered whether artistically embellished belt buckles were subject to copyright protection.¬† The court recognized that although belt buckles were “merely useful objects,” the decorative features characteristic of the buckles being litigated rendered them something more than just useful objects.¬† In fact, the court wrote that the original ornamentation of the buckles was conceptually separable from their useful qualities and, therefore, deserved copyright protection.

buckles

This conclusion does not apply to any belt buckle and probably not the one your wearing unless it meets the basic requirement of originality and creativity inherent in a work of art.

Fast forward a few decades and the question arises again but this time between makers of smoking paraphernalia (presumably tobacco but times are a changing). In this case —¬† Inhale, Inc. v. Starbuzz Tobacco — Inhale sued Starbuzz for infringing its copyright in the distinctive shape of its skull and cross-bones adorned hookah water container.

hookah

The question was whether Inhale owned a valid copyright.¬† The court, agreeing with the defendant, thought not.¬† The issue again was whether the artistic work was either physically or conceptually separable from the utilitarian nature of the piece.¬† Since both parties had to agree that a hookah bottle was a “useful article,” the court looked to whether there was “conceptual” separability.¬† The court relied in part on a previous decision that the shape of a vodka bottle was not separable from its utilitarian features (Ets-Hokins v. Skyy Spirits Inc.).¬† The judge wrote that even though the water bottle had a distinctive shape – much like a sculpture – its shape could not be independent of its utilitarian function “because the shape accomplishes the function” (i.e., holding water).¬† So, no copyright protection and, even worse, the court awarded the defendant over a $100,000 in attorneys fees for having to defend a frivolous lawsuit.¬† Put that in your pipe and smoke it…..

— Adam G. Garson, Esq.

Ask Dr. Copyright …

Friday, January 31st, 2014

copyright question Dear Doc:

It seems that over the years, patents and copyrights have been in some kind of “Freaky Friday” accident, and have switched bodies. It used to be that patent was the big dog in intellectual property, but now, even big companies like Apple that win patent law suits can’t get the courts to stop infringers and win damages that are so tiny that nobody really cares. Copyrights, on the other hand, used to be about as valuable as the paper they were written on, but now, huge verdicts that put whole companies out of business are the norm.¬† What gives???

Signed,

Patently Confused

Dear PC:

You’ve just given the Doc a 64 foot tall soapbox here. So much so that he will have to split the answer up into multiple columns. So here goes…

You see, copyright and patent are both in the US Constitution (Const. Art. I, Sec. 7, Cl. 7 for anyone who cares.) They are the only powers in the Constitution that have an actual reason listed in the document: to promote the progress of science and the useful arts. Back then, by the way, “science” just meant knowledge, while “useful arts” were what we would today call technology. So copyright (literally the right to copy) was a 14 year exclusive on making copies of your writings, and patents protected inventions. So far, so good. But then, Congress fell victim to what the military calls “mission creep.” They started to expand these rights, both in what they protected and for how long.

Over the years since about 1976, Congress has lengthened copyright time and again, so that instead of 14 years, it now lasts for the life of the author, plus 70 years, or for 95 years from publication or 120 years from creation whichever is shorter, if the work is not registered by the author under her own name (works for hire, anonymous or pseudonymous.) What’s more, in order to benefit from the copyright law, you used to have to put a notice on your work (¬© 2014 Dr. Copyright) and register it in the Library of Congress. Now, copyright is automatic for everything you write down (or type, or record…) so your shopping list, Instagram photo, Facebook post, or SnapChat are all automatically protected. This has created a minefield where just about anything you see is under copyright for as long as you’re likely to be alive.

Now add in the terribly inefficient US legal system, where just setting foot in a court room costs tens of thousands of dollars, and you can see what has resulted. Finally, add in digital technology that makes it easy (and culturally acceptable) to copy just about anything with one click of a mouse, and you have a perfect storm of copyright.

Many commentators have suggested that because the Constitution says that you can’t promote the progress of knowledge after an author is dead (she’s not writing much, is she?) and because the Constitution specifically says that patents and copyrights are to be for “limited times” we should rethink this mess.¬† Yale Law Fellow Derek Khanna has made three suggestions: shorten copyright back to a reasonable length; get rid of “statutory damages” which allow a judge to award up to $150,000 for downloading just one song, video, or photo, and; recognize that copyright should not regulate technologies such as whether you are allowed to unlock your mobile telephone.

There are many other changes that the Doc would love to see.¬† Unfortunately, the law that stretched out copyrights to 95 years was called the “Mickey Mouse Copyright Term Extension Act” because Disney gave a lot of money to Representatives in Congress to keep Mickey under copyright just before his original one ran out. We are unlikely to see this Congress or any other go against the movie and music industry in our lifetimes, or for 70 years after we’re dead and gone.

Got another intellectual property law question that makes you hot under the collar? Ask the attorneys at LW&H. They’d love to discuss this stuff, especially at your next party or corporate management meeting, and even more so with an adult beverage in hand.

The “Doc”

“Next month…the Doc rants about patents and trolls…

— Lawrence A. Husick, Esq.