Publisher Fruitlessly Contests Stock Photo Company’s Standing to Sue

Minden Pictures is a stock photography company that also acts as a licensing agent for many photographers.  Minden considers itself “one of the world’s premium providers of wildlife and nature photos.”  Between 1993 and 2008, Minden entered into agreements with photographers that authorized Minden to act as the sole and exclusive agent and representative regarding licensing the uses of the photographers’ submitted images.  The photographers gave Minden the unrestricted, exclusive right to distribute, license and exploit their images.  At the same time, the photographers reserved some rights to themselves, but were prohibited from hiring another licensing agent.  Minden and the photographers also agreed that the photographers owned the copyrights.  Minden and the photographers later entered into agreements conveying some ownership interest to Minden and authorizing Minden to bring lawsuits for the unauthorized use of the images.

Minden sued educational publisher John Wiley & Sons for copyright infringement for exceeding the scope of the licenses Minden granted to it.  Wiley moved to dismiss the case on an FRCP 12(b)(1) motion (which the court noted should have been a 12(b)(6) motion) for failure to state a claim for relief.  Wiley argued that Minden lacked standing under the Copyright Act to bring the lawsuit, alleging Minden was not an owner and therefore could not sue for copyright infringement.  The district court agreed with Wiley and dismissed the case.  The Ninth Circuit reversed.  Minden presented evidence to the Ninth Circuit of its allegations of Wiley’s longstanding practice of copyright infringement, citing eleven other cases brought against Wiley.  The Ninth Circuit disregarded those allegations and limited its discussion to Minden’s case against Wiley.

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Joint Work Determination Does Not Exclude a Derivative Work Determination

Dr. Ross W. Greene developed the Collaborative Problem Solving Approach, a method for treating children with explosive behaviors.  Greene wrote The Explosive Child, a book describing his methods.  Greene and Dr. J. Stuart Ablon co-authored the book Treating Explosive Kids

A disagreement developed between Greene and Ablon, after which Greene sued Ablon for copyright infringement.  Greene alleged that slides in Ablon’s Power Point presentation infringed Green’s copyrights in both The Explosive Child and Treating Explosive Kids.  Greene also called for an accounting for Ablon’s use of Treating Explosive Kids.  Before the case went to a jury trial, the district court ruled that Treating Explosive Kids could not be both a joint work and a derivative work as a matter of law.  The district court ruled that Treating Explosive Kids was a joint work and that because Ablon co-owned that book, he could not infringe it as a matter of law.  The jury awarded Greene $19,000 against Ablon on Greene’s copyright claims.  Both Greene and Ablon appealed to the First Circuit Court of Appeals.  

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No Copyright Interest for Film Director’s Contributions

The Second Circuit faced a question of first impression:  May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone? We conclude that, at least on the facts of the present case, he or she may not.  (Opinion pdf page 13).

Robert Krakovski owns and operates film-production company 16 Casa Duse, LLC.  Acting as the principal of Casa Duse, Krakovski purchased the rights to Heads Up, a screenplay written by Ben Carlin.  Film director Alex Merkin agreed to direct the film based on the screenplay, also entitled Heads Up.  Except for Merkin, all of the cast and crew members signed an Independent Contractor Agreement with Casa Duse, agreeing that their participation was “work for hire” and that Casa Duse would own the film’s copyright.  Merkin never did sign an independent contractor agreement with Casa Duse, despite receiving numerous email messages from Krakovski requesting Merkin to sign.  Production of the film began in May 2011 without Merkin signing an independent contractor agreement.

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On the Mindfulness Path

A few days ago, I was delighted to have the opportunity to meet Jeena Cho and her husband, Jeff Curl, for coffee in Seattle.  Jeena is an attorney and the co-publisher of The Anxious Lawyer website.  The Anxious Lawyer provides a “Guide to a Happier, Saner Law Practice Using Meditation and Mindfulness.”  Jeena stopped in the Puget Sound area as part of her Resilient Lawyer Roadtrip.  Jeena started her roadtrip in Fort Lauderdale, Florida and will conclude it in Eugene, Oregon before heading home to San Francisco.  Jeena’s life work is bringing mindfulness into the legal profession, helping lawyers practice with authenticity and courage.

What is mindfulness?  According to Jeena, “mindfulness” means “paying attention.”  She views meditation and mindfulness as tools for training the mind.  In her book, Self-Compassion, Psychologist Kristin Neff defines mindfulness as “the clear seeing and nonjudgmental acceptance of what’s occurring in the present moment.  Facing up to reality, in other words.  The idea is that we need to see things as they are, no more, no less, in order to respond to our current situation in the most compassionate – and therefore effective – manner.”  Jeena and Dr. Neff are not out there on some nothing-to-do-with-reality tangent, by the way.  Their messages are supported by mainstream institutions.  Jeena has taken classes offered through The Center for Compassion and Altruism Research and Education at the Stanford School of Medicine and has completed the teacher training practicum for Mindfulness Based Stress Reduction (MBSR).   Dr. Neff is an associate professor in human development at the University of Texas in Austin.

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