PlumbBob Flash Drive Design May Be Protected by Copyright

Electronic Arts (EA) creates a variety of online games, including The Sims.  The Sims game includes a gem-shaped icon called a “PlumbBob.”  To promote a Collector’s Edition of The Sims, EA contracted with Lithomania to produce a USB flash drive shaped like a PlumbBob.  Lithomania contracted with Direct Technologies (DT) to produce a PlumbBob-shaped flash drive prototype.  EA approved the prototype created by DT, but Lithomania shipped DT’s prototype to a company in China to make the same flash drives for $0.50 less per drive than DT’s quoted price.  Even though DT signed an agreement with Lithomania to produce the flash drives, Lithomania never informed DT that DT lost the deal.  DT settled its lawsuit against Lithomania.

DT sued EA for violating the Copyright Act.  The district court ruled that DT’s flash drive was not sufficiently original when compared to the PlumbBob icon to qualify for copyright protection and granted EA’s motion for summary judgment.  The Ninth Circuit ruled that the district court erred by concluding as a matter of law that the flash drive was not copyrightable.  

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Copyright Protects the Batmobile Better Than Even Batman Can!

Mark Towle built and sold unauthorized replicas of the Batmobile as it appeared in the 1966 Batman TV show and in the 1989 BATMAN movie.  DC Comics publishes and owns the copyright to the Batman comic books.  DC Comics sued Towle for copyright infringement.  Towle argued that the Batmobile was not subject to copyright protection, but even if it was, DC Comics did not own the copyrights to the Batmobile as it appeared in the 1966 TV show and the 1989 movie. 

The district court ruled that the Batmobile was a character entitled to copyright protection, that DC owned the copyright in the Batmobile as it appeared in the 1966 TV show and the 1989 movie and that Towle infringed DC’s copyright.  The district court granted DC’s motion for summary judgment on the copyright infringement claim.  I blogged about the district court’s decision in Batmobile Not Excluded From Copyright Protection As a Matter of Law, Rules District Court. The Ninth Circuit affirmed the district court’s copyright decision.

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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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Ghost Writer Heir Haunts Jersey Boys Collaborators

Lawyer, journalist and “Four Seasons” fan Rex Woodard and Thomas DeVito, an original band member, entered into a written agreement for Woodard to ghostwrite DeVito’s autobiography (the Work).  Woodard and DeVito agreed to split the proceeds from publishing and exploiting the Work.  Woodard died in 1991, after completing the Work, but before publication.  DeVito registered the Work under his name four months before Woodard’s death.  The Work was never published.

A convoluted series of agreements and events followed.  Ultimately, the musical “Jersey Boys” incorporated some portion of the Work.  Donna Corbello, Woodard’s widow and heir, sued DeVito, band members Frankie Valli and Robert Gaudio and the writers, directors and producers of the “Jersey Boys” for a variety of claims, including copyright infringement.  Corbello argued that “she, as legatee of Woodward’s joint copyright in the Work, deserves to share in the profits reaped by the various Appellees’ licensing and assignment, or infringement, as the case may be, of the underlying rights.” (Opinion pdf page 8).  The district court ruled against Corbello on all issues and taxed costs against her.

The Ninth Circuit framed the issue:  “We must decide whether a contractual grant of the exclusive right to use an individual’s ‘biographies’ to create a Broadway musical stage play also constitutes a transfer of a copyright ownership interest in that individual’s unpublished autobiography.”  (Opinion pdf page 5).

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Alleged Infringing Downloaders Call Out Movie Owner’s Infringing Activities

Riding Films, Inc. claims to own a copyright in the movie “Dawn Ride.”  Riding Films sued unnamed “John Doe” defendants in at least fifteen separate lawsuits throughout the country, alleging that the John Doe defendants copied and distributed the film without authorization.  Specifically, Riding Films alleges that the defendants downloaded the film using the BitTorrent protocol, thereby copying and distributing without authorization.  In a case before the Southern District of Ohio, some of the individually name defendants alleged that Riding Films’ copyright is invalid and filed a declaratory judgment counterclaim.

Riding Films filed a motion to dismiss the defendants’ declaratory judgment counterclaim for failure to state a claim upon which relief can be granted.  The defendants alleged that Dawn Ride appears to be a remake of an earlier film, that Riding Films did not obtain rights to the earlier version, that Melange Pictures, LLC owns the copyrights in the earlier version and that Melange Pictures is not affiliated with Riding Films.  The district court agreed with the defendants and denied Riding Films’ motion to dismiss the declaratory judgment counterclaim.

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Photos and Videos of Singing Telegram Performer Don’t Infringe Copyright

Catherine Conrad is an entertainer who performs wearing a giant banana costume.  She was hired to perform a singing telegram at a credit union trade association event.  Conrad authorized audience members to take photos or videos for their personal use only.  Conrad sued several credit unions, some credit union employees and the trade association of credit unions for copyright infringement after audience members posted some of the photos on Facebook and other Internet sites.  The district court dismissed the copyright infringement claim as having no merit.  The Seventh Circuit Court of Appeals affirmed.

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Co-Author’s Copyright Registration Does Not Strip Other Co-Author’s Rights

Two issues of first impression came before the Third Circuit in Brownstein v. Lindsay.  “First impression” means that it is a new legal issue for that court.  The first issue of first impression addressed the point in time at which a joint authorship claim under the Copyright Act arises and accrues. In other words, when does the statute of limitations start running for joint authorship claims?  The second issue addressed whether courts have the authority to cancel copyright registrations.

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Fair Use in AP Fairey Dispute but not in Cooks Source Magazine Controversy

In writing posts for this blog, I receive helpful feedback from Dee, my partner, and staff members at LexBlog.  In response to my post AP and Fairey Fair Use Dispute Resolved, one of the LexBlog staff members asked me how the AP/Fairey fair use situation differs from the Cooks Source Magazine controversy.  The specific question was whether my argument in the AP/Fairey post that Fairey created the market for the AP photo is valid when the editor of the Cooks Source Magazine was severely criticized online for copying a web article, editing it to improve it and publishing it in the magazine without permission.  The editor of Cooks Source Magazine arguably created a greater market for the web article.  The argument that the editor of Cooks Source Magazine helped the writer by copying her online article is invalid as a defense to copyright infringement, so why is a similar argument in the AP/Fairey case not also invalid?

For readers unfamiliar with the Cooks Source Magazine controversy, Caitlin Fitzsimmons provides a nice description in Cooks Source Magazine Forced to Close, Following Facebook Backlash.  Monica Gaudio posted a story called A Tale of Two Tarts  on the Gode Cookery website.  She discovered that Cooks Source Magazine republished the article without her permission.  When Ms. Gaudio contacted Judith Griggs, the editor of Cooks Source Magazine, about the infringement, she was told that content on the web is in the public domain and she should compensate Ms. Griggs for editing the story.  This account of the story was posted by Ms. Gaudio on her blog under Copyright Infringement and Me.  Ms. Griggs and the magazine became the subject of enough negative reaction on the Internet that the magazine lost advertisers and was forced to go out of business.

Ms. Gaudio points out on her blog that the Gode Cookery webpage displays a copyright notice.  A writing on the Internet is protected by copyright law even though it does not display a copyright notice.  Copyright is created by the act of fixing an original work in any tangible medium of expression, such as posting an article on a website.  The use of a copyright notice has the benefit of eliminating the innocent infringer defense.  For example, the copier cannot credibly argue that she thought the copied work was in the public domain if it contains a copyright notice.  Most of the material posted on the Internet is not in the public domain.  The general rule for copying material from the Internet is that if you didn’t write it, the copyright belongs to someone else and that if you want to repost it or republish it without infringing the copyright, you need to get permission.

Getting back to the question from the first paragraph, how is it that creating the market for a copyrighted work is a valid argument in the AP/Fairey case but not in the Cooks Source Magazine controversy?  There are some important differences between the two cases.  Firstly, the Cooks Source editor admitted copying Gaudio’s article and did not claim fair use.  Instead, she reportedly made the outrageous claim that material posted on the web is in the public domain.  Secondly, in a fair use case, the statute requires the court to consider “the effect of the use upon the potential market for or value of the copyrighted work.”  So in a fair use case, arguing that the copier created the market for the original work is a valid argument, as the court is required to examine the market for the original work.

What makes a case a fair use case?  It starts off with the alleged infringer claiming fair use.  Fair use is not merely copying, but creating a derivative work.  A derivative work is based on a preexisting work and involves recasting, transforming or adapting the preexisting work.  Creating a derivative work is one of the exclusive rights reserved to the copyright owner.  Fair use is a defense to copyright infringement, hence the name of the fair use statute:  “Limitations on exclusive rights:  Fair use.” 

Fair use is not an available defense for the Cooks Source editor, as she argued that the web article was in the public domain.  The fair use defense does not apply unless there is first an infringement.  If something is in the public domain, it is not copyrightable and the Copyright Act does not apply.  There can be no copyright infringement of a work in the public domain.  In the AP/Fairey case, Fairey made an AP photo of Obama into a stylized poster.  Whether Fairey’s transformation of the AP photo into a new work was sufficient to gain the protection of the fair use statute is the unanswered question from the AP/Fairey case.