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Copyright

Public Domain Day, January 1 in the U.S., marks the end of term of copyright protection for all copyrights expiring within the year. For the last 20 years, however, Public Domain Day in the U.S. has been largely uneventful, as there has been an effective freeze on copyright expiration since 1998. January 1, 2019 will be the first Public Domain Day since then that copyrighted works see their expiration and transition into the public domain in the U.S. 

Grumpy Cat Limited, owner of copyrights and trademarks pertaining to the cat named Tardar Sauce (which gained notoriety for its permanent scowl shown in popular memes), licensed certain limited rights to Grenade Beverage in relation to its "Grumppuccino" iced coffee.  After Grenade Beverage allegedly breached and exceeded the scope of the agreement by selling "Grumppuccino" t-shirts and other coffee products, Grumpy Cat Limited filed suit in the United States District Court for the Central District of California.

After three years of litigation, a jury ultimately found in favor of Grumpy Cat Limited -- with Tardar Sauce actually making an appearance at one point during the trial -- and awarded $710,000.00 in damages for trademark and copyright infringement.  David Jonelis, lawyer for Grumpy Cat Limited, was quoted saying that it was "the first verdict ever rendered in favor of a viral meme," and that "memes have rights too."

Thursday, 22 February 2018 23:44

Son of Playwright Sues Fox for "The Shape of Water"

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David Zindel has filed a lawsuit in the Central District of California against Fox, director Guillermo Del Toro, and others, for copyright infringement of a play penned by his father in 1969 titled Let Me Hear You Whisper, regarding the recent movieThe Shape of Water .  Spoilers follow the break.

The term “substantially similar” causes plenty of confusion in copyright infringement cases.  Beyond the amorphous nature of the term, itself, courts use this language with subtly different meanings when evaluating the separate prongs of the test for infringement: (1) copying, and (2) misappropriation. It’s not enough to merely copy; to be liable for infringement, the defendant must take elements of a work that are original. Copying can be demonstrated by circumstantial evidence of access to the plaintiff’s work and substantial similarity of the defendant’s work, calling for only a probative level of similarity to support a factual conclusion of copying. However, the second prong, misappropriation, requires a qualitative analysis of the plaintiff’s work to determine the scope of copyright protection, which in turn yields a sliding, legal standard for infringement, i.e., whether the accused work is similar in terms of copying a substantial amount of protectable expression. The Ninth Circuit recently took that to the extreme in Sophia & Chloe v. Brighton Collectibles, a case involving jewelry as a sculptural work. Because Sophia & Chloe’s “Buddha Kiss” earrings were deemed to be so minimally original, and thus entitled to narrow copyright protection, the panel ruled that the proper standard for the misappropriation prong was “virtually identical” rather than “substantial similarity,” thereby re-invigorating a legal test most often used in the past for obscure cases involving multiple listing services and other content of limited creativity. In copyright litigation, the various meanings of substantially similar are definitely not virtually identical.

Online service providers should note the approaching deadline in connection with the Digital Millennium Copyright Act (“DMCA”). Many websites, mobile apps, blogs, discussion boards, and the like qualify as online service providers: “those that allow users to post or store material on their systems, and search engines, directories, and other information location tools”. The DMCA has "safe harbor" provisions that may shield online service providers from copyright infringement liability with respect to content that is posted or uploaded by their users. In order to seek to take advantage of this "safe harbor" protection, online service providers must designate an agent that will receive notifications of claimed copyright infringement with respect to user-generated content. If you have designated an agent for this purpose in the past, please note that any designation that was made using the U.S. Copyright Office’s former registration system will automatically expire on January 1, 2018. Therefore, it is critical for online service providers to file a new designation before the end of 2017. Our firm handles these filings and has been appointed as the designated agent for DMCA take-down notifications for many clients. For more information about the process, or to speak to one of our attorneys about having our firm designated as your agent for take-down notifications under the DMCA's "safe harbor” provisions, please contact our office at 305-858-8000.

Online service providers should note the approaching deadline in connection with the Digital Millennium Copyright Act (“DMCA”). Many websites, mobile apps, blogs, discussion boards, and the like qualify as online service providers: “those that allow users to post or store material on their systems, and search engines, directories, and other information location tools”. The DMCA has "safe harbor" provisions that may shield online service providers from copyright infringement liability with respect to content that is posted or uploaded by their users. In order to seek to take advantage of this "safe harbor" protection, online service providers must designate an agent that will receive notifications of claimed copyright infringement with respect to user-generated content. If you have designated an agent for this purpose in the past, please note that any designation that was made using the U.S. Copyright Office’s former registration system will automatically expire on January 1, 2018. Therefore, it is critical for online service providers to file a new designation before the end of 2017. Our firm handles these filings and has been appointed as the designated agent for DMCA take-down notifications for many clients. For more information about the process, or to speak to one of our attorneys about having our firm designated as your agent for take-down notifications under the DMCA's "safe harbor” provisions, please contact our office at 305-858-8000.

Wednesday, 12 July 2017 22:09

Important Copyright Notice

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This is an important notice regarding the Digital Millennium Copyright Act (“DMCA”). The DMCA has "safe harbor" provisions that may shield online service providers from copyright infringement liability with respect to content that is posted or uploaded on a website by others. In order to seek to take advantage of this "safe harbor" protection, online service providers must designate an agent that will receive notifications of claimed copyright infringement with respect to user-generated content on their web sites. If you have designated an agent for this purpose in the past, please note that any designation that was made using the U.S. Copyright Office’s former registration system will automatically expire on January 1, 2018. Therefore, it is critical for online service providers to file a new designation before the end of 2017. Our firm handles these filings and has been appointed as the designated agent for DMCA take-down notifications for clients. For more information about the process, or to speak to one of our attorneys about having our firm designated as your agent for take-down notifications under the DMCA's "safe harbor” provisions, please contact our office at 305-858-8000.

Firm Attorneys Peter Matos, Meredith Mendez and Jonathan Woodard were successful in enforcing  the valuable intellectual property rights of well-known jeweler Merit Diamond Corporation related to its highly successful Sirena®  Collection in federal court in Miami, Florida.  Merit sued Defendants, Sears, Roebuck & Co., Sears Holdings Management Corporation, Sears Brands, LLC, Kmart Operations LLC, Kmart Corporation, iStar Jewelry LLC, Yelnats, Inc., and Stanley Creations, Inc. for copyright and trade dress infringement due to their sale and manufacture of infringing jewelry.  The Court entered a Judgment upon consent in favor of Merit requiring the Defendants to pay Merit Diamond the amount of $90,000 and permanently cease all manufacture, distribution, and sale of the infringing products. http://bit.ly/2qT9pwg

The 11th Circuit in Fourth Estate Public Benefit v. Wall-Street.com, LLC, No. 16-13726 (11th Cir. 2017) has reaffirmed its position that a copyright owner cannot file a copyright infringement lawsuit unless the Register of Copyrights registers the copyright in the works at issue. 

Although registration is not required to own a copyright, it is required for a copyright owner to enforce its rights in court in a copyright infringement action. The Copyright Act provides that “registration” of a copyright is a precondition to filing suit for copyright infringement. 17 U.S.C. § 411(a).

In Fourth Estate, the plaintiff filed an application to register its works, although the Register of Copyrights did not register the works. The Court held that “registration” occurs when the Register of Copyrights registers the copyright and not merely when an owner files an application to register the copyright. Therefore, the Court affirmed the district court’s dismissal of the plaintiff’s complaint on the basis that it failed to plead compliance with the registration requirement of 17 U.S.C. § 411(a). 

This decision represents a split in authority among the circuits as some circuits such as the Ninth and Fifth Circuits follow the “application approach”, which requires a copyright owner to file the deposit, application, and fee required for registration before filing a suit for infringement.

 

Thursday, 23 March 2017 14:07

Supreme Court Rules Cheerleader Uniform Copyrightable

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The U.S. Supreme Court ruled in Star Athletica v. Varsity Brands, that decorative elements of a cheerleading uniform are protectable by copyright law, a ruling the Court said was aimed at resolving "widespread disagreement" on when such designs are eligible for protection. The decision bolsters the legal protections for pictures, sculptures and graphic designs. The case examined the limits of copyright protection for clothing, furniture and other useful items that can have both functional and distinctive ornamental aspects. The Court reasoned that the cheerleader uniform design met the test of being able to "exist as its own pictorial, graphic, or sculptural work" and that it was eligible for copyright protection when it was separated from the utilitarian article. The ruling could have expansive implications for designers in the fashion industry, who seek to protect ornamental designs that are affixed on useful articles like clothing.

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