Disgruntled Former Tenant Wins Fair Use of Ugly Photo of Real Estate Tycoon

Irina Chevaldina is a disgruntled former tenant of a shopping center owned by Raanan Katz.  Katz also owns a minority interest in the Miami Heat basketball team.  Seffi Magriso is a professional photographer who took a photo of Katz while he stood courtside at a basketball practice in Jerusalem.  The photo shows Katz with his tongue sticking out of his mouth and his eyebrows arched sharply upwards.  Katz, who thinks the photo is ugly and embarrassing, acquired the copyright to the photo from Magriso.  Chevaldina found the photo through a Google image search and incorporated it into her scathing blog posts about Katz and his business practices.   

Katz sued Chevaldina for copyright infringement.  The district court granted summary judgment in favor of Chevaldina based on her fair use argument.  The Eleventh Circuit affirmed the district court’s ruling.

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Fair Use Puts a Block on DMCA Take Down Tactics

Universal Music Corporation filed a DMCA takedown notice to remove from YouTube Stephanie Lenz’s 29 second home video of her two young children dancing to Prince’s song Let’s Go Crazy.  Lenz sued Universal for making misrepresentations of infringing use in its takedown notice. 

According to the Ninth Circuit, this case

boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use.

We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

(Opinion pdf page 5).

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FTC Pursues Hacked Wyndham Over Lax Cybersecurity Practices

Wyndham may wish it could be on vacation after the FTC’s unfair practice suit against it. The Federal Trade Commission (FTC) filed suit against hotel and time share giant Wyndham Worldwide Corporation, alleging unfair practice and a deceptive privacy policy for Wyndham’s failure to protect consumer data from hackers.  Hackers stole personal and financial consumer data from Wyndham’s computer systems three times from 2008 to 2009, resulting in over $10.6 million dollars of fraudulent charges.  The district court denied Wyndham’s motion to dismiss.  The Third Circuit granted interlocutory (interim) appeal on these two issues:

Whether the FTC has authority to regulate cybersecurity under the unfairness prong of 15 U.S.C. § 45(a); and, if so, whether Wyndham had fair notice its specific cybersecurity practices could fall short of that provision.

(Opinion pdf page 7).

The Third Circuit affirmed the district court’s ruling.

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Chicken Recipe and Sandwich Name Copyrights Meet the Chicken Plucker

I like to look for humor in the law.  I also like to provide answers to questions people occasionally ask me, such as “Can I copyright my recipe?” and “Can I copyright a name?”  This case both contains humor and answers these questions.  Dee, my spouse, and I recently helped our friends Rebecca and Barbara assemble a Whizbang Chicken Plucker, so this post also gives me an opportunity to work that in.  Some people may not know that the chicken plucker makes life easier for humans by removing the feathers from the chicken after the chicken has been butchered.

Crying foul over the trademarking and continued sale of a chicken sandwich, plaintiffs-appellants Norberto Colón Lorenzana and Gladys Goza González filed suit in the United States District Court for the District of Puerto Rico.

(Opinion pdf page 2).

Norberto Colon Lorenzana (Colon) created a new chicken sandwich while working as an employee at South American Restaurant Corporation (SARCO), a Church’s Chicken franchisee, in Puerto Rico.  Colon named his creation the “Pechu Sandwich.”  SARCO eventually filed a trademark application with the U.S. Patent and Trademark Office for the name “Pechusandwich” and received a federal trademark registration.  Colon sued SARCO for trademark law violations and copyright infringement.  The district court granted SARCO’s motion to dismiss.  The First Circuit Court of Appeals affirmed.  This post addresses the copyright infringement issues only.

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