Articles Posted in Intellectual Property

From the idea of product design, who wouldn’t want to protect more of their products? A producer should be able to profit off the sweat of labor, and creativity that they have mustered to bring the product.  Yet, if a design brings utility, then the individual that comes up with it may have a monopoly over the most effective design, which hampers competition. These are the issues that the United States Supreme Court recently considered in Star Athletica v. Varsity, as Justice Sotomayor phrased as “killing knockoffs” with copyright protection.  The case involved two parties, Star Athletica and Varsity, both producers of cheerleading uniforms.  Varsity sued Star Athletica for copyright infringement of protected designs over a dress. Still, there were various issues to be resolved. What is useful? What is protected by copyright laws?  Would it matter if even after the creative elements were removed, there was nothing useful about the article at all?

Star Athletica

In this case, the main issue was effectively based in the idea of useful articles.  In copyright, there is a thinner protection for “useful” things, protecting only what is creative rather than the useful parts of it.  In essence, it had to be “separable” either conceptually or physically. This generally meant to be “truly” separable, it would have to be both. Relating to the cheerleading uniforms, it presented a unique issue. The major question however, was if the designs on the dress (i.e., the chevrons, colors, general look) were protectable. Presumably, either the designs on the dress were protectable, as they could be reproduced and placed on some other object, like a lunchbox, or they were unprotectable, as they were intertwined with the functionality of a cheerleader’s uniform.

In continuing our comments regarding copyrights online, we are on to fair use and liability for litigation. A dancing baby has created one of the most obscure and interesting cases for the year. The ramifications of this lawsuit could further impact the way that some copyright disputes could play out, bringing in a potential new factor for any takedown or claims of infringement. Yet, how this ultimately will work out is up to the justices who currently compose the highest court of the land (i.e., United States Supreme Court).  What is the story of the “Dancing Baby” case? How might copyright infringement cases change? How could the court decide? Does this interact with the earlier Kirtsaeng ruling, if at all?

What is happening with the case now?

To recap, Lenz v. Universal focuses on whether there is a good faith requirement for takedowns. Lenz had uploaded a video on YouTube showing her toddler dancing to the song “Let’s Go Crazy” by Prince. It also included a snippet of the song in poor quality. Sometime after, Universal issued a takedown of the video. However, in its analysis, the Ninth Circuit first decided that there was a good faith requirement, and questioned if Lenz would be owed damages. So far, the United States Supreme Court has denied a request for certiorari by the petitioner over what, if any, damages could be requested by Lenz. The case has also garnered the attention of various organizations, such as the Electronic Frontier Foundation and Yes Men to curtail incorrect takedowns.

Copyright is a legal right that keeps intellectual property safe, and allows individuals to profit from their efforts. Yet, these copyrighted works will at some point head over to the public domain after their expiration, which means they are not protected anymore.  What if it did not expire? In fact, recent decisions and lobbying have tried to push the effective “lifespan” of copyrights.  Instead of the life of the author, plus 70 years, it becomes further extended. So, how might this happen? What are the decisions that push for an artificially long copyright? How might an entity take advantage of this extension?

Warner Brothers v. X One X Productions:

For a few years now, there has been a legal dispute between Warner Brothers and X One X Productions, commonly known as AVELA, over the copyrights of various properties, like Wizard of Oz and Tom & Jerry. Now, these properties are still protected through copyright, but not entirely.  AVELA had taken a path akin to Dastar, and used images from promotional art, which was not renewed, and placed into the public domain since it failed to renew under the copyright laws of the time. However, back in 2011, a decision was made finding against AVELA, and while damages were disputed, the court found that Warner Brother’s awarded damages were not only justified, but they were liable for trademark infringement as well. Ultimately, this finding was because the works themselves were no longer under copyright protection, however the base work was, and the trademarks for the base work. Thus, any copies of the work incorporating the protected characters, or alterations, would become derivative works, covered under the copyright for the base work. Furthermore, the trademarks, like the names or character designs would be protected too.  Also, as trademarks have no expiration date, they can effectively push the protection of this sort of copyright further.

Imagine that you were sued for copyright infringement, yet above all odds, you managed to prevail on the merits. Your case went up to the Supreme Court, it found for you, and you have emerged successful. Yet, you are stuck footing the bill to defend yourself against a claim that was in your favor all along.  How will you get out if it? Isn’t there a section of the Copyright Act, specifically written to encourage meritorious claims to better define copyright laws? Shouldn’t the prevailing party be entitled to its attorney’s fees? This scenario has played out in front of the Supreme Court, and decided on this past summer in Kirtsaeng II.

Can’t Kirtsaeng collect his legal fees?

In its ruling, the high court came back with a resounding “maybe.”  After Kirtsaeng’s first case relieved him from liability due to his resale of books falling under the First-Sale Doctrine, he had attempted to recoup his fees.  However, the appellate court declared that he could not get the fees back, as in that circuit, the fees could not be reimbursed so long as the other side had a reasonable claim. Other circuits also had general presumptions against awarding fees to the defending party if they had prevailed, thus there was some disagreement over what constitutes a prevailing party. Yet, when the court ruled in favor of Kirtsaeng here, the result was less a resounding “yes” and more of a clarification for the lower court. The high court unanimously determined the Fogerty standards were too wide (fees are awarded case-by-case and the courts must keep in mind the mounting of a meritorious case). In determining the meritorious aspect, Fogerty listed factors like frivolousness, motivation, and reasonableness. Yet, in the Second Circuit’s rulings, it placed too much focus on the reasonableness of the claims, resulting in the clarification.   In general, the court has discretion to award attorney’s fees to the prevailing party under 17 U.S.C. 505.