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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Tag Archives: Copyright

Supreme Court to Hear Oral Arguments in Copyright Case

03 Monday Oct 2011

Posted by Kenan Farrell in Copyright, Intellectual Property, Litigation, Supreme Court

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Copyright

The Supreme Court of the United States gets back to work this week and will be hearing oral arguments on a copyright case, Golan v. Holder. [FULL SCHEDULE] Here’s the skinny on what you’ll want to know about the case going into Wednesday morning’s arguments:

GOLAN V. HOLDER

DECISION BELOW: 609 F.3d 1076

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It “restored” copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners’ free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners’ right to perform, share and build upon works they had once been able to use freely.

The questions presented are:

  1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
  2. Does Section 514 violate the First Amendment of the United States Constitution?

Stay tuned to the Indiana IP&T blog for a transcript and summary of the oral arguments. Go here for links to the Merit Briefs and a long list of Amicus Briefs.

Church and the Super Bowl

24 Monday Jan 2011

Posted by Kenan Farrell in Copyright, Entertainment Law, Intellectual Property, Trademark

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Copyright, Peyton Manning, Trademark

The last time Peyton Manning was leading the Indianapolis Colts on a championship run (it’s been awhile), the NFL clamped down on the ability to watch the big game in churches. The NFL sent letters to churches informing them that airing the game would be a violation of the NFL’s copyright and trademark rights. However, two years ago the NFL appeared to call a reverse and allowed viewing in churches under certain conditions.

So what’s the NFL’s policy this year? Since there’s been no indication to the contrary, it seems the NFL is sticking to the policy that churches can air the Super Bowl without violating copyright laws. So start planning those parties!

For those who don’t know, here’s How to Host a Church Super Bowl Party.

What Could Have Been Entering the Public Domain on January 1, 2011?

03 Monday Jan 2011

Posted by Kenan Farrell in Copyright, Intellectual Property, Legislation

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Aldous Huxley, Copyright, Dr. Seuss, Fredric Wertham, J.R.R. Tolkien, Lord of Rings Triology, Richard Matheson, Tennessee Williams

Current US law extends copyright protections for 70 years from the date of the author’s death. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years).  Under those laws, works published in 1954 would be passing into the public domain on January 1, 2011.

This includes:

  • The first two volumes of J.R.R. Tolkien’s Lord of Rings trilogy: The Fellowship of the Ring and The Two Towers
  • Aldous Huxley’s The Doors of Perception
  • Dr. Seuss’ Horton Hears a Who!
  • Richard Matheson’s I Am Legend
  • Fredric Wertham’s Seduction of the Innocent, subtitled “The influence of comic books on today’s youth”
  • Tennessee Williams’ Cat on a Hot Tin Roof
  • C.S. Lewis’ The Horse and His Boy, the fifth volume of The Chronicles of Narnia
  • First issue of Sports Illustrated
  • Director Alfred Hitchcock’s Rear Window, starring James Stewart, Grace Kelly, Raymond Burr, and Thelma Ritter
  • White Christmas, starring Bing Crosby, Rosemary Clooney, and Vera Allen, featuring songs by Irving Berlin
  • I Got a Woman, (Ray Charles and Renald Richard)

While authors of famous and commercially successful works have incentive to renew the copyright for a second term of 28 years, statistics show that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew).  This means that if the pre-1978 law were still in effect, about 85% of the works created in 1982 would enter the public domain on January 1, 2011. How amazing would that be?

“Imagine what that would mean to our archives, our libraries, our schools and our culture. Instead, these works will remain under copyright for decades to come, perhaps even into the next century. And for most of them – orphan works – that means they will be both commercially unavailable and culturally off limits, without any benefit going to a copyright holder.”

Click here for the full discussion and additional works.

Sarah Palin sues website for leaking excerpts of new book

22 Monday Nov 2010

Posted by Kenan Farrell in Bloggers, Copyright, Intellectual Property, Litigation, Social Media

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Copyright, Copyright Infringement, Gawker Media, HarperCollins Publishers, Palin, Trademark Infringement

A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin’s forthcoming book “America by Heart: Reflections on Family, Faith and Flag” from its blog. Palin’s book will hit stores on Nov. 23.

The injunction prohibits Gawker from “continuing to distribute, publish or otherwise transmit pages from the book” pending a hearing on Nov. 30.
HarperCollins Publishers had sued Gawker after it published images on Nov. 17 from Palin’s book before its release next week.

In response, Palin tweeted, “Isn’t that illegal?”

Gawker defended its action in a post Thursday titled “Sarah Palin is Mad at Us for Leaking Pages From Her Book” and addressed a message to “Sarah” telling her to read pages about fair use under copyright law. “Or skip the totally boring reading and call one of your lawyers,” the post said. “They’ll walk you through it.”

I’ll go a step further and save Sarah and everyone else the trouble of contacting a lawyer…Gawker’s posting of the pages was almost certainly a fair use.  “Fair use” is a limitation and exception to a copyright, the exclusive right to the author of a creative work.  The posting of excerpts for book reviews is an accepted practice and has been since at least 1961. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.”

There are four factors to be considered in determining whether or not a particular infringing use is “fair”:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Gawker may be considered to have a commercial interest in publishing the excerpts, via increased web traffic, ad sales, etc. However, they can claim an equally strong, if not greater, interest in criticism, comment, news reporting, teaching, scholarship or research (all “fair use” purposes). I wasn’t able to view the excerpts prior to their removal via the injunction but I understand it was not a substantial portion of the book. If anything, prior leaks only seem to enhance book sales. Would anyone be surprised if someone close to Palin’s camp was responsible for leaking the excerpts?

Presumably, it’s the nature of the “leak” prior to the book being on sale that has bothered Palin. But that’s also a common practice and most publishers consider it welcome free advertising leading into a big book launch. The next hearing is November 30, a week after the book release, so this may be a moot point by that time.

Sarah Palin’s main gripe may actually be with the excerpts being taken “out-of-context.” However, that wouldn’t be a copyright action, it would be an action for something like fraudulent misrepresentation (“If a statement of fact is made but the representor fails to include information which would significantly alter the interpretation of this fact, then a misrepresentation may have occurred.”). The Complaint isn’t available on PACER yet so I’m not sure what else it includes. Somebody send me a copy if you have it.

Copyright law has been abused in many ways by many industries recently, but hopefully this post will at least help restore sanity to the realm of book reviews.

[Update 11/23/10: I’ve been able to review the Complaint now. It’s available over on The Trademark Blog. Gawker posted 21 full pages from Palin’s book and that is almost certainly more substantial copying than you’d see in a typical review. Indeed, it may shift the fair use analysis over to Palin/HarperCollins. However, it also makes Palin’s comment of “out-of-context” seem silly…how do you take 21 full pages out of context?

The Complaint also dwells on Gawker’s own use of the word “leaked” as an admission of wilful infringement, probably poor word choice in retrospect and a lesson that newspapers learned long ago. We’ll see how this plays out once the book is released. Expect a mini-battle over revealing the source of the leak and, should it go that far, some data showing that the leak actually helped sales.]

Source: Associated Press

Kenny Crews to speak on Copyright Law and International Fair Use

04 Wednesday Mar 2009

Posted by Kenan Farrell in Copyright, Intellectual Property

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Copyright, Indiana, Intellectual Property

Copyright maven Kenny Crews will speak tomorrow at Yale University about his landmark 2008 study for the World Intellectual Property Organization (WIPO), in which he compares fair use and other copyright limitations/exceptions across some 150 countries.kennycrews

Kenny Crews has a distinguished career in copyright and fair use issues. He is currently the Director of the Copyright Advisory Office at Columbia University.  Until his appointment at Columbia in January 2009, he was a professor at Indiana University School of Law – Indianapolis and the IU School of Library and Information Science. His work has won wide acclaim, and he has been active in projects and initiatives on copyright law in the United States and around the world. You can read more about his work here.

Th speech is co-hosted by the Yale University Library and the Yale Law School’s Information Society Project.

When: Thursday, March 5, 3:00 p.m.
Where: Sterling Memorial Library Lecture Hall, 128 Wall Street
Cost: Free and open to public

Disclosure – Kenny Crews taught my Intellectual Property & Copyright courses back in law school. Therefore, I’d have to hold him at least partially responsible for my career in intellectual property law.  He’s an enthusiastic and engaging speaker.  I look forward to seeing the results of his study.

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