Georgia State University: College Course Electronic Packets ~
Cambridge University Press v. Board of Regents of
University System of Georgia (08-cv-1425, N.D. Georgia). This case remains
pending before Judge Orinda D. Evans in the federal court in Georgia. The plaintiffs, Cambridge University Press,
Oxford University Press, Inc. and Sage Publications, Inc., seek to prevent the
Georgia State University campus library from providing to university students electronic
course packets of some or all of the plaintiffs’ copyrighted publications. I originally blogged about this case in my post of June 24, 2011. While Georgia
State pays publishers’ royalties for print versions of course packets
containing copyrighted publications, it does not obtain permission and pay
royalties for electronic course packets. GSU generally argues that providing a
few pages or chapters from copyrighted material in electronic form as part of a course
packet is fair use in an educational context. Judge Evans conducted a bench trial this past June 2011.
The parties are presently engaged in post-trial briefing and the court has not
yet made a decision on the copyright merits. It will be interested to learn the
court’s infringement and fair use views of copying and electronic distribution
of copyrighted material for educational purposes.
Appropriation Art on Appeal: Cariou v. Prince ~
Patrick Cariou v. Richard Prince and Gagosian Gallery,
Inc. (08-cv-11327, S.D.N.Y.; 11-1197, 2d Cir.) In my post of March 27, 2011
I wrote about the copyright infringement claim brought by photographic artist Patrick Cariou against well-known appropriation
artist Richard Prince. Cariou sued Prince and Gagosian Gallery for infringement of his photos. According to the N.Y. trial court, some 35 photos taken by Cariou of
Jamaican Rastafarians were copied and displayed, wholly or partially, by Prince, with some
of the Cariou photos having been modified or painted over. Prince argued that
his treatment of the Cariou photos amounted to fair use.The trial court held that
Prince’s conduct was copyright infringement and that Prince’s use of the Cariou
photos did not constitute fair use. The defendants appealed to the Second
Circuit Court of Appeals.
To date, amicus briefs have been filed by Google, Art
Museums and Association of Art Museum Directors, and The Andy Warhol Foundation
for the Visual Arts, Inc. Google’s brief addresses in part the type of
transformation that may be required in order to find the existence of fair use,
and observes that large scale digitalization by a search engine may amount to
sufficient transformation so as to constitute fair use.
The amicus brief of the art museums observes that appropriation
art – the use of pre-existing work of another in the creation of new art – has enjoyed
a long and admired history, including examples by Picasso, Duchamp (Mona
Lisa with a mustache) and Warhol, and evolving through Dadaism and contemporary pop art. The museum amici
criticize as flawed the infringement and fair use analysis of the trial court,
criticize the direct and vicarious liability imposed on an art museum by the
claimed infringing conduct of an artist, and criticize the trial court’s order
of impoundment and destruction of Prince’s works. The museum amici argue that
the trial court’s decision “could punish cultural institutions and censure
educational activities that pose no threat to the original copyright holder,
and it could harm the public by limiting access to significant creative works.”
The Andy Warhol amicus brief observes that it is common for
artists to appropriate preexisting imagery and that the trial court employed a
too narrow view of transformative conduct in finding the lack of fair use. The
brief argues that “Cariou’s objective was ‘classical … portraiture.’ * * * His
photographs of Rastafarians appear to celebrate the Rastafarians by depicting
them respectfully in their actual environment * * *.” The brief suggests that
Prince employed Cariou’s original photos for another purpose in creating Prince’s
new work. “Whatever Prince’s purpose was, it was not that. Prince uses elements of Cariou’s utopian images to depict a post-apocalyptic world that exists only in
Prince’s imagination.” The Warhol brief argues in part that there can be “a
wide array of transformative meaning” applied to the use of existing images in
creating new art with new expression. The Warhol brief criticizes the trial court’s
fair use and injunction analysis.
Cariou’s opening brief will likely be filed in late
January 2012 and the briefs of the defendants are not expected to be filed until next March. Oral argument has not been scheduled but may occur prior to the end of
2012. A final decision from the Second Circuit may not come down until sometime
in 2013.
Betty Boop: Lost in the Public Domain ~
Fleischer Studios, Inc. v. A.V.E.L.A dba Art & Vintage Entertainment Licensing Agency. This past February 23, 2011, a
three-judge panel of the Ninth Circuit issued a bejeepers, good-golly opinion
holding that Fleischer Studios lost its trademark and copyright interests in the
Betty Boop cartoon character. The court held that the lovable waif was
ownerless with no basis for protection from defendants who, without permission,
copied the cartoon image onto consumer goods. The court determined that
Fleischer failed to establish the chain of title for the copyright and
trademark rights. The court further held that the employment of the image of Betty
Boop in consumer goods was not an impermissible trademark use, because the
image was not being used as a trademark but as a functional product. Of the
three judges on the panel, only Judge Susan Graber filed a dissent strongly
questioning the basis for the majority decision.
But then on August 19, 2011 the Ninth Circuit panel withdrew
its February opinion and issued a revised opinion. The revision did not
change the decision but it did revise the trademark analysis. Rather than base the trademark holding on the concept of no trademark use due to aesthetic functionality,
the opinion determined that the Betty Boop image was not inherently distinctive
and that there was no proof of secondary meaning (even though Fleischer argued
that the image had been used on merchandise since 1972). Judge Graber continued
to strongly dissent. The Ninth Circuit refused to consider this case en banc.
So, at present the law of merchandise trademark infringement is a bit muddled in the Ninth Circuit. Boop
boop be doop. Perhaps the Supreme Court will allow Fleischer’s anticipated
petition for writ of certiorari.
Criminalizing an Employee's Computer Use ~
USA v. Nosal. My blog post of May 2, 2011 discussed
the Ninth Circuit’s opinion that criminalizes, under the Computer Fraud and
Abuse Act, what might otherwise be viewed as innocent computer usage by a
company’s employees. In October, the Ninth Circuit agreed to hear en banc the
extent to which an employee’s use of a work computer can constitute criminal
conduct. Oral argument was held en banc on December 15, 2011. A decision is expected this coming spring. The full en banc oral argument can be watched and heard at this link.
Don't Remove That Credit! ~
Murphy v. Millennium Radio Group. The Third Circuit
held that the removal of a credit from a copyrighted work may violate the
Digital Millennium Copyright Act
Foreign Internet Posting Triggers U.S. Copyright Law ~
In my July 18, 2011 blog post, I discuss the Florida
district court’s holding in Kernal Records Oy v. Mosley that the first
publication of an Australian work on the Internet constitutes first publication
in the U.S. Publishing by first posting directly to the Internet causes the U.S. Copyright Act to apply to the foreign work for purposes of
determining enforceability of the foreign work in the United States.
A New York State of Mind ~
In Penguin Group (USA) Inc. v. American Buddha, an
Oregon company that uploaded copyrighted images onto the Internet in Oregon was
sued in New York by a New York resident - copyright owner. The New York state appellate court
held that a New York copyright plaintiff alleges an injury in New York state
for jurisdiction purposes when its copyrighted work is uploaded without
permission onto the Internet outside of New York. Bottom line, wherever you
are, you may be sued in a New York court if you upload copyright content belonging
to a New York resident onto the Internet.
Hot News is now Cold ~
My post of June 20, 2011 discussed the holding in Barclays
Capital Inc. v. Theflyonthewall.com, Inc. This case denied the existence of
the so-called “hot news” claim, holding that there is no such thing under copyright
law since copyright law cannot protect factual data, including hot, new data.
In the Barclays case, a news aggregator was permitted to copy fresh news
reports developed by Barclays, thereby using Barclays' own research in direct
competition.
More Odds and Ends ~
There are several pending IP cases that may be resolved in
2012. One such case, presently before the Supreme Court, Golan v. Holder,
will determine whether copyrights to foreign works lost in the U.S. due to failure
to observe U.S. copyright technicalities (e.g., lack of renewal filings, failure to provide copyright notice, etc.) were properly restored in 1994 by the Uruguay Round
Agreements Act. Oral argument occurred on October 5, 2011, and a decision is
expected this coming spring. Listen to the oral arguments at this link. And, the Supreme Court will likely decide this
spring the Mayo Clinic v. Prometheus patent case that posits whether the
Prometheus patents underlying a blood test are protectable by patent law,
thereby inhibiting a physician’s ability to treat patients. Read the oral argument transcript here.
And let us not forget the Google book copying infringement
case. Its settlement agreement was rejected by the New York trial court and its
status remains unresolved.
Happy New Year, everyone.
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