Admitted Copier of Diagram on the Hook for Copyright Infringement

Mary Lippitt has pursued excellence in the organizational management field for many years.  In 1987, she created a diagram “to encapsulate and communicate the results of her research on the failures of complex organizational change initiatives.”  (Opinion pdf page 2).  The diagram provided a visual depiction of her determination of the most basic variables and likely outcomes.  She registered her copyright in the work containing the diagram.  At the time of this litigation, she no longer had a copy of the work she originally registered.  She registered other versions of the diagram as part of other works she created in 2000 and 2003.

Donald W. Warrick teaches in the organizational development field.  He admitted to copying Lippitt’s diagram and even credited her at the bottom of some of his versions of the diagram.  Lippitt sued Warrick for copyright infringement.  Warrick brought a motion for summary judgment, arguing that Lippitt could not prove ownership of a valid copyright, that the diagram was not copyrightable and that Warrick’s diagram did not infringe protectable expression in Lippitt’s diagram.  The district court granted Warrick’ motion for summary judgment without issuing a written opinion.  The Tenth Circuit Court of Appeals reversed, ruling that Lippitt’s expression did not merge with the underlying ideas, that Lippitt selected, coordinated and arranged the elements of her diagram in an original way and that Lippitt did meet the statutory registration requirement.

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Trade Secrets Often Overlooked When Protecting Intellectual Property

Last week, I attended the Licensing Executives Society (LES) Spring Meeting, which was held in Seattle.  The theme of the meeting was “IP Matters in Every Deal.”  What is IP?  Many people that I talk to about IP (intellectual property) assume that IP means patents.  While patents are a type of IP, patents do not comprise the entire IP universe.  IP also includes copyright, trademark, trade secret and privacy law. 

Several speakers at the LES Spring Meeting spoke briefly about the potential value of keeping information as a trade secret, instead of filing a patent application based on that information.  Applying for a patent and keeping information as a trade secret are mutually exclusive.  With certain exceptions, the United States Patent and Trademark Office (USPTO) publishes patent applications 18 months after they are filed.  If a patent is not granted, the applicant has disclosed her invention information to the public without receiving the benefit of a patent.  Depending on the circumstances, the invention information may yield more value if kept as a trade secret than if disclosed through the patent process. 

This blog post addresses two questions:

1.  What is a trade secret?

2.  How are trade secrets protected?

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Bare Right to Sue for Copyright Infringement Not Enough for Standing

Righthaven LLC’s business model is identifying copyright infringements on behalf of third parties, obtaining limited, revocable copyright assignments from the third parties, and then suing the infringers.  Righthaven received such copyright assignments from Stephens Media LLC, the owner of the Las Vegas Review-Journal.  Righthaven separately sued Wayne Hoehn and Thomas DiBiase for copyright infringement for posting Las Vegas Review-Journal articles online without authorization.  The cases were consolidated for appeal.  In both cases, the district court ruled that Righthaven lacked standing to sue for copyright infringement because Righthaven did not own any of the exclusive rights, as required by the Copyright Act.

The Ninth Circuit affirmed the district court’s decisions:

Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

(Opinion pdf pages 3-4).

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Appropriation Artist’s Use of Book’s Photos Fair Use

Patrick Cariou’s book of photographs, Yes Rasta, captures portraits and landscapes from the years he spent living among the Rastafarians in Jamaica.  Richard Prince is an appropriation artist.  Appropriation art is a genre that involves “taking over into a work of art a real object or even an existing work of art.”  (Opinion pdf page 5).  Prince takes photos and other images produced by others and incorporates those photos and images into his paintings and collages.  Prince used the photos from Cariou’s book in thirty works of art.  The uses ranged from little alteration of Cariou’s work to almost entirely obscuring Cariou’s work.  Cariou sued Prince for copyright infringement.  Prince claimed the fair use defense.

The district court granted Cariou’s motion for summary judgment on copyright infringement and denied Prince’s motion for summary judgment on the fair use defense.  The district court interpreted the fair use statute to require that the secondary use “comment on, relate to the historical context of, or critically refer back to the original works” for the secondary use to qualify as a fair use.  The Second Circuit reversed the district court’s ruling on twenty-five of the thirty works at issue, holding that the fair use statute does not impose such requirements.

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