Copyright

A Brie-f Tale of Copyright and Cheese to Share at Thanksgiving Dinner

Opinion, Levola Hengelo BV v Smilde Foods BV, Case C-310/17  

In an unfortunate queso failed copyright claims, Levola Hengelo, a Dutch food processor of once Humboldt beginnings, has lost a court case in which it attempted to enforce copyright protection in the taste of its cheese product, Heks’nkaas.

Levola had become salty after a competitor, Smilde Foods, started raking in the cheddar by selling cheese spread with a similar taste. Levola brought claims against Smilde for infringing alleged copyright in the taste of Heks’nkaas. READ MORE

The Music Modernization Act: Congress Poised to Pass Legislation Updating Music Copyright Royalties for the Digital Age

On April 25, 2018, the House of Representatives unanimously passed H. R. 5447, otherwise known as the “Music Modernization Act” (MMA). The bill, which now awaits Senate action, amends the Copyright Act in multiple ways, most notably by changing the way online music services pay royalties. In its current form, the MMA comprises three parts. READ MORE

A Tale of Two Geoblocks: 2018’s Cases on Extraterritorial Broadcasts Lead to Differing Results

Spanski Enterprises v. Telewizja Polska, D.C. Cir. (March 2, 2018) and Carsey-Werner Company, LLC v. British Broadcasting Corporation, et al., C.D. Cal. (Feb. 23. 2018)

As TV shows and other copyrighted content are increasingly made available on globally accessible websites, questions regarding the territorial reach of copyright law are also on the rise.  The first quarter of 2018 has already produced a couple of interesting cases relating to extraterritorial performances and geoblocking.  READ MORE

Reassessing Embedding: When In-Line Linking May Get You In Trouble

Opinion, Goldman v. Breitbart News Network, LLC, No. 17-03144 (S.D.N.Y. Feb. 15, 2018) (Judge Katherine B. Forrest)

News reporters, bloggers, and other online media outlets beware: know where your embedded images and social media posts originate, or risk unexpectedly finding yourself on the receiving end of a copyright claim due to the acts of another.  At very least, be prepared with defenses beyond the “server test.” READ MORE

No Foul: “Jumpman” Can Keep Soaring

Rentmeester v. Nike, Inc., No. 15-35509, 2018 WL 1055846, at *6 (9th Cir. Feb. 27, 2018) (Judge Paul J. Watford)

On February 27, the Ninth Circuit upheld the dismissal of copyright claims against Nike, Inc. alleging that the company’s popular photograph of Michael Jordan and its “Jumpman” logo infringed upon an earlier photograph taken by Jacobus Rentmeester. The court found that although Nike’s photo and logo were “obviously inspired” by the Rentmeester photograph, they were not “substantially similar” and therefore did not infringe upon Rentmeester’s copyrights. READ MORE

Applying a Law of Nature to Getting Desired Results Does Not Confer Patent Eligibility

Order Granting Motion for Summary Judgment of Invalidity, American Axle & Manufacturing, Inc., v. Neapco Holdings LLC and Neapco Drivelines LLC, (D. Del. Feb. 27, 2018) (Judge Leonard P. Stark)

In a recent patent infringement action filed in the District of Delaware, plaintiff American Axel & Manufacturing, Inc. (“Plaintiff”) and defendants Neapco Holdings LLC and Neapco Drivelines LLC (collectively “Defendants”) filed cross-motions for summary judgment on the issue of patent eligibility under 35 U.S.C. § 101. The patent at the core of the cross-motions was Plaintiff’s U.S. Patent No. 7,774,911 (“the ‘911 patent”), which disclosed a method for attenuating driveline vibrations transmitted through a shaft assembly in a vehicle.[1] Defendants argued that the asserted claims of the ‘911 patent were invalid because they were not directed to any specific discrete liner design but rather to a solution to the problem of attenuating shell and bending mode vibrations generally, by applying physics. The Court agreed with Defendants and found the patent invalid. READ MORE

Fleeing the Swarm

Order Adopting in Part Report and Recommendation, Granting in Part and Denying in Part Motion to Dismiss Counterclaims, Denying Motion for Default Judgment, and Denying Motion to Voluntarily Dismiss Claims, LHF Productions, Inc. v. Kabala, et al., No. 2:16-cv-02028-JAD-NDK (D. Nev. October 23, 2017) (Judge Jennifer A. Dorsey).

In copyright litigation, “swarm joinder” refers to the act of joining multiple John/Jane Doe defendants from a BitTorrent “swarm” in a single legal action utilizing a single filing fee.  The so-called “swarm” is a group of users in a peer-to-peer file-sharing network that anonymously download and upload the same copyrighted file during a given period.  Because the defendants are initially unidentified, the plaintiff typically files an ex parte motion for expedited third-party discovery from Internet service providers (ISPs) for the names and addresses of persons associated with specified IP addresses.  Once the plaintiff has that information, the plaintiff typically amends the complaint to substantially narrow the list of defendants down to the people positively identified during discovery.  While such swarm joinder cases have significantly increased in popularity nationwide—with some plaintiffs filing against thousands of defendants in a single action on a single filing fee—there is no consensus on their propriety under the Federal Rules.  Currently, the D.C. Circuit is the only Court of Appeals to have explicitly ruled on the issue, and in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014) it concluded that swarm joinder does not satisfy FRCP 20(a)(2).  At least twelve District Courts have agreed with the position of the D.C. Circuit, at least five District Courts outside the D.C. Circuit have disagreed (permitting swarm joinder), and eighteen others have taken a “middle ground” in which the District Court may exercise discretion to manage its docket and sever defendants even if swarm joinder might technically be permissible. READ MORE

Christmas Comes Early for “Useful Article” Copyright Holder

 

Order Denying Motion and Cross-Motion for Summary Judgment, Jetmax Ltd. v. Big Lots, Inc. et al., 15-cv-9597 (S.D.N.Y. Aug. 28, 2017) (Judge Katherine Forrest)

Tricky questions can arise when a person or company attempts to copyright the decorative aspects of a “useful article” that has some practical, nonartistic function.  The questions become trickier still when the decorative aspects of the article are three-dimensional “sculptural” elements, as opposed to two-dimensional words or images.  Judge Katherine Forrest’s recent order in Jetmax Ltd. v. Big Lots, Inc. et al., pending in the Southern District of New York, addresses whether a plaintiff can copyright the decorative cover on a set of Christmas lights.  Note that the “cover” is the physical housing that surrounds the light bulb. READ MORE

Two Recent Decisions Highlight Divergent Extraterritorial Application of Lanham Act and Copyright Act

The question whether and under what circumstances the Lanham Act and the Copyright Act will be applied to conduct occurring at least partially outside the United States grows increasingly important as the world economy continues to globalize and many manufacturers seek to extend their franchises across borders. Two recent federal court decisions have addressed this issue, underscoring the somewhat anomalous differences in extraterritorial enforcement of trade dress and copyright laws, as well as the ability of plaintiffs to obtain injunctive relief with extraterritorial effect. READ MORE

From Northern California to the Entire IP Landscape: Orrick’s New Blog

We’re excited to announce the recent transition of Orrick’s former NorCal IP blog into its new iteration – IP Landscape (Today’s News, Tomorrow’s Strategy)!  Our new blog is more comprehensive in scope and will focus on a variety of intellectual property issues and events, both national and international, that are likely to affect the bottom line for many technology-driven enterprises. Through our blog, you’ll find information and updates to help drive business strategies.

We hope this new blog will be an entertaining and useful resource for those interested in the latest case law, happenings and events that affect the entire landscape of intellectual property. We’ll be covering patent, trademark and copyright rulings in what might be described as the most “popular” venues, such as the Northern and Central Districts of California, the Eastern District of Texas, the District of Delaware, the International Trade Commission (ITC), and the Patent Trial and Appeal Board (PTAB). We will also be reporting on other IP-related and newsworthy events, such as significant developments in copyright, trademark, antitrust, entertainment and trade secret litigation, not to mention legislative changes, local networking events, IP licensing issues and other hot topics of interest. READ MORE