Copyright

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

Copyright Assertion – Wait, or Don’t?

Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC et al., 11th Cir. (May 18, 2017)

Copyright protection can be a critical part of a company’s IP strategy, especially when that company generates time-sensitive news stories and other writings. But, as this 11th Circuit decision demonstrates, it remains unclear whether a copyright lawsuit can be filed on a work the Copyright Office has not yet officially registered.

By statute, a party can’t file suit on a copyright until after “registration.” Although the copyright registration process is relatively straightforward, it does not happen instantly. In a situation where a content creator is rapidly producing new writings, it may wish to sue a copier prior to completion of registration by the Copyright Office. READ MORE

Piracy Pays (The IP Owner) – Judge Whyte Grants Motion for Default Judgment After Awarding Sanctions in Unauthorized Software Distribution Case

Order Granting Motion for Default Judgment, Adobe Systems Inc. v. Software Tech, et al., Case No. 5:14-cv-02140-RMW (Judge Ronald M. Whyte)

Everyone in the software field (and probably every computer user) is familiar with Adobe and at least one of its products, including Acrobat and Photoshop. Popular software vendors like Adobe are often the victims of piracy and the unauthorized distribution of their products. As such, many have adopted policing measures like employing investigators to purchase products from third-party distributors to verify authenticity and proper licensing.  READ MORE

Monkey Business: A Primate Can’t Claim Copyright in Selfies

Order Granting Motions to Dismiss, Naruto, et al. v. Slater, et al., Case No. 15-cv-04324-WHO (Judge William Orrick)

The show business has all phases and grades of dignity, from the exhibition of the monkey to the exposition of the highest art in music or the drama which secures for gifted artists a world-wide fame princes well might envy.”  ~  P.T. Barnum

 Are photographic “selfies” a uniquely human conceit? Parties in a Northern District copyright lawsuit who purport to represent “Naruto” – the crested  macaque monkey who in what might be described as a “primate whim of self-promotion” grabbed the camera of wildlife photographer David John Slater and took  a series of his own “monkey selfies” to the delight of millions who have seen the images –argue “no.” READ MORE

A Purr-fect Opinion on Copyright Registrations

Order Granting Defendants’ Motion to Dismiss, Epikhin et al. v. Game Insight N.A., et al., 5:14-cv-4383 (Judge Lucy Koh)

Cat videos are one of the most popular types of user-uploaded Internet videos. It is unsurprising, then, that there is now cutting-edge copyright case law about a cat-themed video game. In a case about who owns the copyright to the game “Cat Story,” Judge Koh recently issued an order dismissing the case because the plaintiff failed to deposit copies of the game at issue itself with the Copyright Office. As her opinion shows, this is something that plaintiffs need to get right. READ MORE

Ninth Circuit Requires Fair Use Evaluation Before Issuing DMCA Take-Down Notices

DMCA Take Down Notices and Fair Use Evaluations, Lenz v. Universal Music Corp., et al., 13-16106 (9th Cir)

In a highly anticipated opinion in the so-called “Dancing Babies” case, the 9th Circuit clarified this week the steps under the Digital Millennium Copyright Act (“DMCA”) that copyright holders must take before issuing a “takedown” notice to content platforms such as YouTube. In a case of first impression, the Court of Appeals held that a copyright holder must analyze whether the allegedly infringing work is a “fair use” before sending the takedown notice. READ MORE

Uber Takes A Ride Back To State Court: Federal Court Dismisses Conversion Claim, Remands Trade Secret Misappropriation Case Back To State Court

Order on Motion to Remand, Kevin Halpern, et al., v. Uber Technologies, Inc., et al., 15-cv-02401-JSW (Judge Jeffrey White)

Uber has faced its share of challenges of late, from the established taxi community to cities considering bans on Uber’s ride-sharing service. Last week was more of the same, as Judge Jeffrey S. White handed Uber a loss in the Northern District in Halpern v. Uber Technologies, Inc., Case No. 15-cv-02401-JSW. Judge White remanded back to San Francisco Superior Court a trade secret misappropriation action brought by plaintiffs Kevin Halpern and Celluride Wireless READ MORE

The Fact That an Argument Is a Loser Is Not Enough to Make It Stand Out in a Crowd

Order Denying Defendant’s Motions for Sanctions and Attorney Fees, Kreative Power, LLC, v. Monoprice, Inc., Case No. 14-cv-02991-SI (Judge Susan Illston)

Little more than a year has passed since the Supreme Court articulated a more lenient standard for awarding fees in a patent case pursuant to 35 U.S.C. § 285.  In two unanimous rulings—Octane Fitness and Highmark—the Supreme Court threw out the old test, finding it was so demanding that it rendered Section 285 essentially meaningless, because it conflated a statutory award of fees with the Court’s inherent power to sanction.  READ MORE