Copyright Ownership Can Be Transferred Through Terms of Use

A compelling copyright issue in the online world is whether a copyright owner can transfer ownership of the copyright to a new owner by agreeing to the terms of use on a website.  Metropolitan Regional Information Systems, Inc. (MRIS) provides a fee-based online multiple listing service to real estate agents and brokers.  Upon agreeing to the MRIS terms of use and paying the subscription fee, MRIS subscribers can upload their real estate listings and photographs to the MRIS database.  By agreeing to the terms of use (TOU), subscribers assign to MRIS all of their copyright interests in the photographs they upload to the MRIS database.  MRIS subscribers must click a button assenting to the terms of use before uploading photographs.  MRIS puts a copyright notice on all photographs in its database and registers the database with the Copyright Office every quarter.

American Home Realty Network, Inc., (AHRN) aggregates content from other sources, including the MRIS database, to display on its website.  After AHRN displayed photos from the MRIS database on its website, MRIS sent AHRN a cease and desist letter.  AHRN asked for a license, which MRIS refused.  MRIS sued AHRN for copyright infringement.  The district court granted MRIS’s motion for a preliminary injunction.  AHRN appealed, arguing that MRIS’s subscribers did not transfer their copyright interests to MRIS when they agreed to MRIS’s terms of use.  The Fourth Circuit Court of Appeals affirmed the district court’s ruling, holding that a copyright interest can be validly transferred through an electronic agreement. 

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Copyright Law Not a Tool for Sharp Litigation Practices

In this case, the plaintiffs allowed an attorney to file their litigation documents, and then accused the attorney of copyright infringement for modifying the plaintiffs’ documents.  The court’s opinion begins badly for the plaintiffs: “This case concerns a novel attempt to use copyright law in furtherance of sharp litigation practices.”  (Opinion pdf page 2).  Bernard Gelb and his company, Unclaimed Property Recovery Services, Inc., (UPRS), claim copyright ownership of the First Complaint, which Gelb wrote as a plaintiff in a class action lawsuit.  Norman Kaplan, an attorney, represented Gelb and UPRS when the First Complaint was written.  Kaplan filed the document on behalf of all class plaintiffs, with Gelb’s authorization.  Kaplan later ended his representation of Gelb and UPRS.  Kaplan continued to represent the other class action plaintiffs.  During the litigation process, Kaplan’s clients were granted leave to file an amended complaint.  Much of the amended complaint was exactly the same as the First Complaint.  Gelb and UPRS sued Kaplan for copyright infringement, seeking an injunction and damages.

“This case presents an issue of first impression: whether the holder of a copyright in a litigation document who has authorized a party to a litigation to use the document in the litigation may withdraw the authorization after the document has already been introduced into the litigation and then claim infringement when subsequent use is made of the document in the litigation. We hold that such an authorization necessarily conveys, not only to the authorized party but to all present and future attorneys and to the court, an irrevocable authorization to use the document in the litigation thereafter.”  (Opinion pdf pages 4-5).  In making its ruling, the Second Circuit did not intend to suggest that the permission of the copyright owner is always necessary to use a copyrighted document in litigation.  Parties to a litigation, their attorneys and the court must have unrestrained use of the documents that are part of a litigation.

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Green Paper Fails to Confront What’s Really Wrong With Copyright

Last week, the Internet Policy Task Force of the U.S. Department of Commerce released its Green Paper, entitled Copyright Policy, Creativity, and Innovation in the Digital Economy.  The Green Paper identifies what the Task Force considers to be the most pressing copyright problems confronting us and makes recommendations regarding solutions to and the further study of those problems.  “The Task Force believes that the core principles of U.S. copyright law remain fundamentally sound.” (pdf page 18).  Seriously?  That statement mimics a statement made by a presidential candidate heading into the general election in 2008, when we all knew that the fundamentals of the economy were far from sound.  It seems unlikely that copyright laws that work well for the masses will be adopted unless some of the basic fundamentals underlying U.S. copyright law are re-examined.  Those fundamentals are the ones that keep copyright law skewed in favor of major content-owning corporations, such as the notion that copyright laws increase creativity.

Below is a summary of the Task Force’s Green Paper.  Although the Task Force attempts to address the major copyright issues created by the digital age, philosophically, the Task Force plants itself firmly in the era of the creation of the U.S. Constitution and refuses to budge.  With this attitude, the Task Force aligns itself with the members of the U.S. Supreme Court espousing the original meaning of the Constitution.  The members of society who benefit most from the original meaning of the Constitution are white, property-owning males, soon to be a minority.  To benefit the rest of us, the Constitution should be construed as a living, breathing document.  In copyright theory, we should be willing to move beyond the theories that existed at the time the Constitution was created, just as we have, for example, with First Amendment theory.  The Task Force fails to truly examine what’s wrong with copyright by refusing to examine the validity of the underlying theories.  Until the Task Force and, more broadly, stakeholders and decision-makers, are willing to do that, we will achieve nothing but cosmetic improvements to copyright law.

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College QB’s Right of Publicity Slaps Video Game Developer’s Free Speech Rights

This case involves balancing a video game developer’s free speech rights against a well-known college football player’s right of publicity.  Video game developer Electronic Arts Inc., (EA) is the developer of NCAA Football, a game in which the user controls avatars symbolizing actual college football players.  EA endeavors to accurately duplicate each college football team.  Samuel Keller, the starting quarterback at Arizona State University from 2005 to 2007 and later at the University of Nebraska, took exception to EA’s use of his likeness.  Keller filed a putative class action against EA for violation of his right of publicity under California state law. 

EA moved to strike Keller’s complaint as a “strategic lawsuit against public participation” (SLAPP) under California’s anti-SLAPP statute.  California’s anti-SLAPP statute seeks to prevent lawsuits that are brought to inhibit citizens from exercising their political or legal rights or to punish citizens from exercising those rights.  Video games are entitled to full First Amendment protection.  That issue was not contested in this case.  The district court denied EA’s motion to strike Keller’s complaint.  The Ninth Circuit Court of Appeals affirmed the district court’s decision, ruling that EA’s affirmative defenses against Keller’s right of publicity claim were insufficient to support a ruling in EA’s favor on its motion to strike.  The four affirmative defenses raised by EA, and derived from the First Amendment, were the transformative use test, the Rogers test, the public interest test and the public affairs exemption.

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