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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Stem Cell Photographer’s $1.6 Million Copyright Infringement Jury Verdict Upheld

Andrew Leonard photographs stem cells using an electron microscope.  Due to the technical skill required, he is one of just a handful of such photographers.  Leonard pays a scientific research institution to use its electron microscope.  He obtains cell samples from doctors, scientists and researchers.  Leonard takes the images in black and white, then uses his artistic judgment to add color to the images. 

Stemtech uses distributors to sell the nutritional supplements it formulates.  Stemtech distributors sign a contract and must comply with Stemtech’s policies and procedures manual.  Leonard licensed two of his stem cell images to Stemtech for limited use.  Stemtech failed to pay Leonard the agreed upon licensing fee and exceeded the scope of the license by using the images without a license in its promotional materials.  Further, Stemtech allowed some of its distributors to use Leonard’s images on their websites.  After Stemtech and its distributors refused to pay Leonard for the unauthorized use of his images, Leonard sued Stemtech and its distributors for copyright infringement.  The jury awarded Leonard a $1.6 million verdict against Stemtech on Leonard’s direct, vicarious and contributory infringement claims.  The issues on appeal to the Third Circuit were whether the district court should have granted Stemtech’s motion for a new trial on contributory and vicarious liability and damages and whether Leonard should have received prejudgment interest and infringer’s profits.

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Merchandising Missteps Lead to Willful Infringement and CMI Removal Claims

Music merchandising company Live Nation admitted to copyright infringement by using photographer Glen Friedman’s photographs of the hip-hop group Run-DMC on t-shirts and a calendar without Friedman’s authorization.  On appeal to the Ninth Circuit, the issues in Friedman’s lawsuit against Live Nation involved whether the evidence was sufficient to establish that Live Nation willfully infringed Friedman’s copyrights and to establish that Live Nation violated §1202(b) by knowingly removing copyright management information (CMI) from Friedman’s photos.  There was also an issue of whether the number of retailers who purchased infringing merchandise from Live Nation could be used to calculate statutory damages.

The district court granted summary judgment to Live Nation on the willful infringement and CMI issues.  The district court ruled that Friedman could recover one statutory damages award per work infringed, rejecting Friedman’s damages calculation based on the number of retailers.  The Ninth Circuit reversed the district court’s rulings on the willful infringement and CMI issues, but upheld the district court’s ruling on the statutory damages issue.

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Alleged Infringer Bears the Burden of Proving Authorized Copying

Jesus Muhammad-Ali painted a portrait of Louis Farrakhan, the leader of the Nation of Islam, in 1984.  Ali sued The Final Call for copyright infringement in 2013.  The Final Call is a newspaper that considers itself the “propagation arm of the Nation of Islam.”  Although The Final Call admitted to selling over one hundred copies of Ali’s portrait of Farrakhan, the district court ruled in favor of The Final Call. 

On appeal to the Seventh Circuit, Ali argued that “the district court misstated the elements of a prima facie copyright infringement claim and erroneously shifted to him the burden of proving that the copies were unauthorized. Ali is correct, and The Final Call proved no defense. We therefore reverse. (Opinion pdf page 2).

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Don’t Drone On My Bean Picking!

I was picking green beans in our garden recently, carefully trying to avoid spiders and other insects hiding amongst the leaves.  Suddenly, I heard a buzzing noise.  It grew louder.  I jumped back from the bean trellis, wondering whether there was a yellow jacket nest hidden there.  After a few seconds, I realized that the noise came from a drone, not from insects.  I felt relieved that I was not about to be attacked by stinging insects, but annoyed that my neighbor chose to fly his drone over my property.  I don’t like my neighbor flying his drone over my property, but what are my rights to tell him to stop it?

The right to control airspace is one issue.  Another issue is the spying issue.  Most drones have cameras, allowing the operator to view what’s happening on the ground below.  The spying issue involves my neighbor’s ability to observe me and my property and gather from air information about me, and my other neighbors, that is otherwise unavailable to him.  My drone flying neighbor and I can’t see each other’s homes from the ground.  I’m more concerned about the spying issue than I am the air space issue.  Regardless of the right to control airspace, individuals still have privacy rights that must be protected.

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Different Work Made for Hire Test Under the Copyright Act of 1909

This case applies the Copyright Act of 1909 version of “work made for hire.”  Why are we still talking about the 1909 Act when the Copyright Act of 1976 became effective on January 1, 1978?  Since the 1909 Act applies to all copyrights secured before 1/1/1978 and the first term for pre-1/1/1978 copyrights is 28 years, followed by a second term of 67 years (28 + 67 = 95), some portions of the 1909 Act remain relevant until 2072.  (1977 + 95 = 2072).  Those portions of the Copyright Act of 1909 will remain relevant throughout the careers of Millennial attorneys, and then some.  I say some portions, because the 1976 Act did away with many of the 1909 Act’s draconian requirements.

Composer and music producer Jack Urbont wrote the Iron Man theme song in 1966.  Urbont wrote theme music for a variety of other Marvel television characters.  In 2000, without Urbont’s permission, Dennis Coles (aka Ghostface Killah), Sony and Razor Sharp Records produced and released Supreme Clientele, an album spotlighting the Iron Man theme song on two tracks.  Urbont became aware of the album around early 2010 and sued Sony, Coles and Razor Sharp Records for copyright infringement in 2011.  Sony and Razor Sharp argued that the Iron Man theme was a work made for hire for Marvel and that Urbont did not own the copyright.  The district court granted summary judgment in favor of Sony and Razor Sharp.  On appeal, the Second Circuit held that Urbont raised issues of material fact regarding his copyright ownership and vacated the district court’s summary judgment ruling.

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Ignoring Warnings Against Network Access Leads to CFAA Violations

The Ninth Circuit has issued decisions regarding the Computer Fraud and Abuse Act (CFAA) twice so far this month. Crimes involving the use of computers date back to at least the early 1980s, but the existing mail and wire fraud crime statutes were not adequate to address criminal activity arising out of computer use.  Congress enacted the CFAA as part of the Comprehensive Crime Control Act of 1984 to address this gap in crime coverage.  The CFAA protects against the unauthorized access and use of computers and computer networks and creates both criminal and civil liability.  Network users: Heed the warning to “get off of my cloud.”

In determining the meaning of “accesses a protected computer without authorization” (18 U.S.C. §1030(a)(4)) in the criminal context, the Ninth Circuit said:

We conclude that ‘without authorization’ is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. This definition has a simple corollary: once authorization to access a computer has been affirmatively revoked, the user cannot sidestep the statute by going through the back door and accessing the computer through a third party. Unequivocal revocation of computer access closes both the front door and the back door.

(Opinion pdf pages 4 -5).

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Attorney’s Fees Awards Not Controlled by Losing Party’s Reasonableness Arguments

Before ending its 2015-2016 term, the U.S. Supreme Court issued an opinion in Kirtsaeng v. John Wiley & Sons, Inc.  – for a second time.  SCOTUS issued its first Kirtsaeng opinion in March 2013.  That time, the Court ruled that Kirtsaeng did not infringe Wiley’s copyrights by selling books in the U.S. that were published abroad by Wiley.  I posted on the Court’s decision in First Sale Doctrine Not Limited by Geography, Rules U.S. Supreme Court.

Whether the lower courts erred in denying Kirtsaeng’s motion for attorney’s fees brought Kirtsaeng before the Court the second time.  The Court determined that the lower courts may not have understood the full scope of their discretion to award attorney’s fees and remanded the case for further consideration of Kirtsaeng’s attorney’s fees motion.

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Supreme Court of Florida to Weigh in on Common Law Sound Recording Rights

I’ve written periodic posts about Flo & Eddie since December 2014.  As a brief refresher, the corporation Flo & Eddie owns the rights to the pre-February 15, 1972 sound recordings of The Turtles.  Band members Mark Volman and Howard Kaylan own Flo & Eddie.  Sirius XM Radio, Inc. operates nationwide as a satellite and Internet radio provider.  Flo & Eddie sued Sirius in federal courts in California, New York and Florida.  Flo & Eddie claimed that Sirius violated Flo & Eddie’s ownership rights in its pre-1972 sound recordings by broadcasting recordings and making buffer and backup copies of Turtles performances without a license or authorization.  Appeals in the Flo & Eddie v. Sirius cases are pending before the Second, Ninth, and Eleventh Circuits.

Flo & Eddie’s cases against Sirius arise from the lack of federal copyright protection for pre-1972 sound recordings.  Sound recordings did not receive protection under the Copyright Act until February 15, 1972, although musical compositions and lyrics have always been protected.  If pre-1972 sound recording rights are protected at all, it is under state copyright law.  Although the district courts in California and New York ruled in Flo & Eddie’s favor on its state law claims, the Southern District of Florida granted summary judgement in Sirius’ favor.  On appeal in the Florida case, the Eleventh Circuit Court of Appeals determined that the state law questions had not been decided by Florida state courts.  The Eleventh Circuit certified four questions to the Supreme Court of Florida for that court’s guidance on Florida state law.

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Common Law Tort of Intrusion Upon Seclusion Revitalized in Internet Age

In the past year, the federal law claims in two cases involving Google’s cookie collection practices have been dismissed.  Federal Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act claims against Google were dismissed in In re: Google Inc. Cookie Placement Consumer Privacy Litigation.  Federal Wiretap Act, Stored Communications Act and Video Privacy Protection Act claims were dismissed in In re: Nickelodeon Consumer Privacy Litigation.  Left standing in both cases were the state law intrusion upon seclusion claims.  Intrusion upon seclusion is one of the four privacy torts arising out of litigation during the years following the 1890 Warren and Brandeis article, The Right to PrivacyThe Right to Privacy brought public awareness to the need to protect individual privacy and provided a legal basis for doing so.  Public disclosure of private facts, false light and appropriation are the other three common law privacy torts. 

With all of the federal and state statutes that have been enacted specifically addressing computers and online activity, who would have thought that the analog age tort of intrusion upon seclusion would swoop in like a super hero to act as the vanguard for online consumer privacy rights?  

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