Second Circuit: Copyright Class Action Settlement Fails - Unregistered Copyrights Not Adequately Represented

The Tasini v. New York Times drama has been going on for many, many years. The issue: freelancers wrote articles for the New York Times and other publications. When technology permitted the articles to be put into searchable electronic databases, could the publishers do this without seeking permission from the copyright holder? The U.S. Supreme Court's 2001 decision in Tasini taught us that doing so without getting the copyright owner's permission was copyright infringement. So in the decade that followed, we had Reed Elsevier v Muchnick in which the US Supreme Court decided that 17 USC 411 (the requirement that a copyright be registered before a federal claim for copyright infringement may be filed) was not jurisdictional.

Now following remand from the Supreme Court's decision in Muchnick, we have In re Literary Works in Electronic Databases Copyright Litigation (2d Cir. August 17, 2011) - a decision deciding a matter that was originally argued on March 7, 2007.

The decision is embedded below.   In it the Second Circuit rejects the district court's certification of a class action for settlement purposes because the holders of unregistered copyrights were not adequately represented.  Holders of unregistered copyrights were classed as "Category C".

Category A -  Holders of copyrights registered in time to qualify for statutory damages.  To be paid $1,500 for first 15 works written for any one publisher, $1,200 for the second fifteen works for that publisher, and $875 for all works written for that publisher after the first 30.

Category B - The greater of $150 or 12.5% of the original price of the work.

Category C,  The greater of $5 or 10% of the original price of the work with sliding scale for works over $249  ($25- $60).

The settlement capped the publishers' total exposure at $18 million.  Key to the Second Circuit's reasoning was that only Category C would be reduced if the global settlement exceeded $18 million.

This decision is an important one in interpreting Rule 23 of the Federal Rules of Civil Procedure, which governs certification of class actions and requires that each class or subclass be adequately represented.

Judge Straub wrote a 16 page dissent in favor of class certification.


In Re Literary Database Litigation

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Second Circuit: First Sale Doctrine Does Not Apply to Foreign-Made Works - Importer Is Copyright Infringer

In John Wiley & Sons Inc. v. Kirtsaeng, 09-4896 (2d Cir. August 15, 2011), the Second Circuit decided a case of first impression, with a powerful dissent from Judge J. Garvan Murtha of Vermont.

Facts:  Foreign student residing in US has family members purchase English-language textbooks from foreign country and ship them to US where he resells them on Ebay.   The textbooks are substantially similar to those sold in the US, although of inferior quality of manufacture (thinner paper, fewer inks).   The manufacture and distribution of the textbooks in the foreign country was authorized by the US copyright owner, but importing them into the United States was not.

Issue:  Where a US copyright owner permits textbooks to be lawfully manufactured and distributed in a foreign country, can the US copyright owner charge persons importing such lawfully-made textbooks with copyright infringement?

Answer:  Yes.

The Second Circuit upheld a judgment against the student for hundreds of thousands of dollars following a jury trial.

The statutes at issue are 17 USC 602(a) which refers to copyrighted works lawfully "made" under the Copyright Act and

The "first sale doctrine" which is embodied in 17 USC 109(a)

 § 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord42



(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. [...]

Essentially, the Second Circuit determined that a copy made in a foreign country was not lawfully made under the Copyright Act.    I commend Judge Murtha's dissent for careful study, the decision is embedded below.

More on the first sale doctrine and the Costco/Omega case here.

John Wiley & Sons v Kirtsaeng


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Ninth Circuit: Specific California Jurisdiction Over Ohio Celebrity Gossip Website Publishing Black-Eyed Peas Infringing Photographs

In Mavrix Photo Inc. v Brand Technologies (09-56134) (Ninth Circuit August 8, 2011), embedded below, the Ninth Circuit reversed a district court's dismissal of a copyright infringement lawsuit brought in California against an Ohio celebrity gossip website http://www.celebrity-gossip.net/ by Mavrix, the operator of http://www.mavrixonline.com/.

The opinion, by Circuit Judge William Fletcher, found no general jurisdiction over the Ohio website.  However, the court found specific jurisdiction based on the activities of the Ohio website directed towards California residents, the serious commercial purpose and national fame of the Ohio website, its expectation knowledge that California residents would be its clients, and its purposeful infringement of a copyright owned by a California resident.

Specific jurisdiction is now a very hot topic in copyright law, following the American Buddha case (more on American Buddha here or scroll down to the bottom of the blog and select "American Buddha").   The issue is whether New York or California long-arm statutes will permit an exercise of jurisdiction over out of state infringers, so it is an example of federal courts relying on state law for their jurisdiction.  The test is "due process" and the citations are to cases that are the bane of first-year law students.  In the American Buddha case, the Second Circuit certified the question to the New York Court of Appeals.  We are seeing an expansion of effective remedies for New York and California copyright owners for serious infringers who are located out-of-state.

Required reading for copyright practitioners.

Mavrix Technologies v Brand 09-56134

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Fair Use Fridays: Myths About the Copyright Act's Fair Use Provisions

Myths about the fair use doctrine, article here
Academics fighting back....

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Copyright Infringement: Ninth Circuit Requires Proof of Irreparable Harm For Preliminary Injunctions

If you thought that the Perfect 10 v. Google case had been resolved long ago, you, like me, would be wrong.  Perfect 10 v. Google, 10-56316 (Ninth Circuit August 3, 2011) is the latest decision by the Ninth Circuit deciding that Perfect 10 should not get an injunction.   In this latest decision again denying Perfect 10 a preliminary injunction, the Ninth Circuit expressly adopted the Supreme Court’s logic in the EBay case which rejected a presumption of irreparable harm in a patent infringement case.  Ebay Inc v. MercExchange, 547 U.S. 388 (2006).

For some time, if a copyright owner showed ownership of a copyrighted work and showed that the defendant had engaged in unauthorized copying, courts presumed that irreparable harm had been shown and shifted the burden of proof to the defendant.   The EBay standard makes getting a preliminary injunction much tougher for copyright owners, reducing the immediate settlement value of many infringement claims.
Perfect 10 is a rather unsympathetic plaintiff, suing Google for its caching of the entire internet and its practice of sending copies of all cease and desist letters to  the Chilling Effects website.  Perfect 10 alleges that because someone could look at a cease and desist letter, then click on the link to view an unauthorized photograph, that it has lost millions of dollars, since consumers won’t pay a subscription for its soft-core pornography when it can be found for free.   At the core of most of Perfect 10’s complaints is that its own subscribers repost images on such services as Blogger.
Since Google is so useful and has adopted what appear to be reasonable anti-infringement policies, it is a sympathetic defendant.  There may be more sympathy for Perfect 10’s position to be found in an amicus brief filed by the Picture Archive Council of America and others, I didn’t dig into this.   An unsympathetic plaintiff who fails to develop a proper record may sometimes shape the law in ways that is undesirable for many others, particularly working photographers needing legitimate protections against republication of original images.  This may well be such a case.   Treating copyrights as fungible goods may not necessarily serve the best interests of society and shifting the cost burden to copyright owners may well be unfair in the case of individual authors who may well be deprived of all bargaining power in cases of legitimate and truly irreparable injury.

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Copyright Infringement: Photographer Sues News Corp, Fox News Over Assata Shakur Photograph

In Buford v. News Corp, complaint here the plaintiff photographer has sued Fox News and Dow Jones over the use of an allegedly rare photograph of the fugitive Assata Shakur (aka Joanne Chesimard).

According to the complaint, there is a one million dollar reward out for Shakur by the FBI because she killed a NJ State Trooper in 1973.   She was granted asylum by Cuba.   The photographer travelled to Cuba and took Shakur's photographer.   Because of the difficulty of accessing Shakur, the photograph is alleged to be very valuable.

The O'Reilly Factor on Fox and the Jon Stewart show allegedly used the photograph with a caption mentioning the murder of the state trooper.

Fox News criticized the Obama Administration for inviting rapper Common who had glorified Shakur's murder of the state trooper in a song, story here.   More from assata.org, in which Assata discusses a "Nazi subculture" in the New Jersey police here.

The complaint claiming copyright infringement is here.

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Fair Use Fridays: A Fair Use Evaluator Webmachine

Another tool for evaluating fair use and keeping a record that you've thought things through. http://librarycopyright.net/fairuse/index.php

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Fair Use Fridays: Copyright Act Section 108: Reproduction by libraries and archives

Via @spellboundblog, you can find a "Section 108 Spinner" here.    17 USC 108 governs reproductions by libraries and archives.

While not exactly under the "fair use" section of the Copyright Act 17 U.S.C. 107, Section 108 provides a lot more detailed guidance for librarians and archivists in determining what types of uses are fair or reasonable.

Please note the "Know your rights, these are your rights" quote from The Clash on the spinner....

The Section 108 Spinner permits a librarian to create a PDF that shows the librarian has considered the proper factiors under 17 U.S.C. 108.   

Just so you know why 17 USC 108 makes librarians' heads spin...

§ 108. Limitations on exclusive rights: Reproduction by libraries and archives41



(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if —
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).



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Copyright Law: Captain America Comic Artist Kirby Copyrights KO'd - SDNY

Captain America Comics #1 (March 1941) Copyright Marvel

In Marvel v. Kirby, 10 civ. 141 (SDNY July 28, 2011), District Judge Colleen McMahon of the Southern District of New York determined that Jack Kirby's artistic contributions to such characters as The Incredible Hulk, The Mighty Thor, Spider-Man, Iron Man, the X-Men and the Avengers were works for hire under the 1909 Copyright Act.

Accordingly, the Court found notices of copyright termination sent by Kirby's heirs to be invalid and granted summary judgment to Marvel based largely on the written testimony of Stan Lee.

The decision is detailed and interesting for students of comic books and those interested in the "instance and expense" test of the 1909 Copyright Act.

The complaint is here.  Decision below:


Marvel v Kirby McMahon Order 7 28 11

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Seventh Circuit: Addition to Architectural Plans Not Original, But Submission of Reconstructed Computer Plans Sufficient for Copyright Filing

In Nova Design Build Inc. v. Grace Hotels, LLC, 2011 WL 3084929 (7th Cir. July 26, 2011), the Seventh Circuit considered a case where an architectural design firm registered a copyright in improvements made to a Holiday Inn Express project. The builder got in a dispute with the architectural designer. The builder proceeded to use the plans, and claimed that the contract permitted the use. On summary judgment, the district court ruled for the defendant builder and against the plaintiff designer.

First, the court applied the T.B. Harms v Eliscu test to determine subject matter jurisdiction. Since the complaint alleged copyright infringement, the court had subject matter jurisdiction. The builder's allegation that the use was permitted by contact (licensed) was a defense - and defenses do not affect jurisdiction under 28 USC 1331 or 1338.

Second, the court overruled the district court's finding that Nova's reconstruction of its computerized designs to support its copyright filing relied on Nova's memory and thus was invalid. Nova's computers had been stolen, so the precise files were unavailable. In overruling, the Seventh Circuit found that Nova's reconstruction was based on hard copies and a meticulous recreation of the plan and that on summary judgment the district court's adverse ruling was not appropriate.

On this point, Nova is correct. Indeed, before the digital world made exact copies common, many copies may have had tiny discrepancies in them. There is no hard evidence in the record supporting the district court's speculation that Nova had to resort to the memories of its employees to re-create its designs. And even if there were, Nova has pointed to evidence to the contrary. With the hard copies and the restored CAD files, Nova could meticulously and mechanically piece together a copy of its original designs.


Practice Tip: This is a quote that copyright practitioners will want to keep in their back pockets.

Third, the Seventh Circuit found that Nova's additions to the Holiday Inn Express plans were not original and thus Nova could not satisfy a key element of copyright infringement.

We think that Nova fails at the initial step: it has not identified anything in these particular designs that was original and thus protectable. Nova's designs were, for the most part, based on the Holiday Inn Express prototype. Nova does not assert that it has the right, either through contract or otherwise, to enforce Holiday Inn Express's copyright in its own plans. Instead, Nova protests that it added features to the prototype, such as an extra floor, a larger meeting area, different closet and door placements in the rooms, and different pool, exercise, and laundry areas, but that is not enough. Though Nova's designs do possess added features (and these additions are the only elements that may be protectable), they are devoid of originality. Merely adding an extra floor, identical to the floor layout of the prototype, is not original. The other features Nova mentions were specifically requested by Grace, mostly through written requests accompanied by graphic designs. In light of that, there was no creative element to these features in Nova's designs. See Tiseo Architects, Inc., 495 F.3d at 347 (holding that architectural sketches that incorporated owner's suggestions and drawings, and were limited by zoning requirements, did not possess requisite originality for copyright protection). The aspects of Nova's designs that went beyond the Holiday Inn Express prototype were insufficiently original to qualify for copyright protection, and with that Nova's claim for copyright infringement must fail.


The Seventh Circuit thus affirmed the District Court's grant of summary judgment against the plaintiff designer.

A short, but important case illustrating how the Seventh Circuit is looking at copyright claims, copyright filings, and demonstrations of originality on a summary judgment motion.


Nova Design Build Inc v Grace Hotels

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Copyright Law: Interview With Register of Copyrights Maria Pallante

 "If you're looking for certainty, fair use is not going to help you sleep at night."

- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine

Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.

If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy.   More on the office of the Register of Copyrights here.

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Legal Birds on Twitter: Top 20 Intellectual Property Law Tweeters - Source: Justia

Legal Birds on Twitter - 20 Top Ranked By Justia Below

1. Erik J. Heels (@ErikJHeels)
2. Mr. Brett Trout (@BrettTrout)

3. Timothy Powers O'Neill (@TimothyPONeill)

4. Venkat Balasubramani (@VBalasubramani)

5. Kevin Eugene Houchin (@kevinhouchin)
6. Brent C.J. Britton (@bcjb)

7. Mr. Thomas J. O'Toole (@bnatechlaw)
8. Alec Brian Wisner (@AlecWisner)

9. Timothy Anderson (@UtahLegalGuy)
10. Victoria Pynchon (@ipadrblog)
11.Gordon Philip Firemark (@gfiremark)
12. Glenn B. Manishin (@glennm)

13. Gregory A. Beck (@gbeck)

14. Enrico Schaefer (@Enrico1999)

15. Kevin A. Thompson (@cyberlaw)

16. Mr. Donald Curtis Kudler Esq. (@DonaldKudler)

17. Duncan Bucknell (@IPThinkTank)
18. Jamil Abdo (@JamilAbdo) Matthew Koziarz (@X_Comprising)

19. 

20.  Daniel Reisman (@DanielReisman)


Full list of Legal Birds ranked by community connection here












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Fair Use Fridays: Copyright Professors To Academia: "Flex Your Fair Use Muscles!"

Fair Use and Fairness on Campus


Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law

Madelyn F. Wessel
University of Virginia

North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934

Conclusion below, full paper free download here

The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.

Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.

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Fair Use Fridays: Kutiman Mashes Jerusalem - Beautifully

More beautiful music and images here

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Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate

The above YouTube video had over 500K views

The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here

The EFF's take:

Oppose Congress' Criminal Streaming Bill


S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!

Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.

Techdirt reports on YouTube protests here

Text of the bill below:

112th CONGRESS


1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
--------------------------------------------------------------------------------

IN THE SENATE OF THE UNITED STATES

May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
----------------------------------------------------------------------------

A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Criminal infringement of a copyright.

(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—

(1) in subsection (b)—

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B) by inserting after paragraph (1) the following:

“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—

“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and

(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.

(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—

(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and

(2) in paragraph (3)—

(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and

(B) in subparagraph (B), by inserting “or public performance” after “distribution”.

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Free CLE: Social Media - Recent Developments and Legal Considerations

Check out this terrific free CLE video on Social Media - Recent Developments and Legal Considerations

http://www.lawline.com/cle/free-course.php
c=1552&s=011891a92d6a48f0c23dbceb1528fe625

http://www.lawline.com/cle/course-center.php?i=1552

For more information or troubleshooting contact Olivera Medenica omedenica@wrlawfirm.com

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51 Twitter Lists Following Copyright Litigation Blog @raydowd

Lists following @raydowd


@unyil_13/photography @TriangleTM_Esq/admktinglaw

Advertising, marketing, trademark, copyright law @TriangleTM_Esq/ip-lawyers @cyberpunknews/enemies-of-a-happy-net @CPA_Fans_Page/dailycheckacctgusa

Related mostly with financial/accounting/tax in USA, and have to check on a daily basis.

@revjaydub/copyright-law @GryphonLtd/international-law @GryphonLtd/litigation @GryphonLtd/fraud-lawyers @AdrianLurssen/jdsupra-lawyers-firms

Lawyers, law firms, and legal professionals distributing content on the @JDSupra network.

@rachaelvaughn/soft-ip

copyright and trademark tweeting

@rachaelvaughn/attorneys

tweeting lawyers

@rachaelvaughn/bloggers

bloggers who tweet

@joygarnett/arty-world-2 @CPA_Fans_Page/accountingnews

Accounting Related News

@CPA_Fans_Page/accountants-taxes

Certified Public Accountants (CPA) and other accounting designations @joygarnett/copyfog @theglipper/first-amendment-media

Folks that tweet about journalism, media, and Amendment 1.

@Diggingpitt/art-bloggers-writers

This is a random list of critics, bloggers, artists and media that tweet about art.

@sawagner30/business-media @CPA_Fans_Page/businessinfo1-21

Tweeps/followers who are into business and other professions @IPblawger/i-p-lawyers

Intellectual Property Lawyers on Twitter

@aaron_ef/ip-attorneys @rgauss/rgauss-copyright @neild1/copyright @njAtty/attorneys @IP360Asia/us-canada2 @mjmartell/esq

legal

@RickJLaRue/head-of-christ-by-richard

I drew a depiction of Christ in 1979. It was stolen from me and is currently being sold by cph.org @Maurism1/derecho @lods1211/ip-it-law

Copyright, Internet/Cyber Law, Media & Entertainment Law, Defamation

@Borty/lawyers @LegalEyeGirl/lawyers-legalbiz-network

Loving the Law and LegalNews-Fighting for Justice-Staying Informed

@HarvardLaw74/ip-attorneys @IPLawToday/hollywood-law

Legal Developments in Hollywood

@mmasnick/news @ballard_ip/intellectual-property

US intellectual property law practitioners who limit their personal tweets

@ksuzan/attorneys @mridgwayjones/ip

Intellectual Property

@JohnPruitt/justiceleague

Attorneys and others who are doing their part to share information to the legal industry

@steve_jacobs/ip-law @Lumpy/podcasters-broadcasters

Anyone who produces Audio and/or Video content.

@davidsanger/photography-law @GlennEsq/law-blogs

a List of Law-related blogs I recommend

@GoetzFitz/interesting-lawyers @RobertAPaul/law @RobertAPaul/intellectual-property @sulilaw/legal @ernieattorney/lawdawgs @ARTnewsmag/artsorgs @asilverstein/ip

Intellectual Property

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use: Response to YouTube's Copyright School - Copyright Law

Mike Madison's take on Madisonian.net here

More on YouTube copyright school here.



 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

First Circuit: Attorneys Fees and Costs May Far Exceed Damages In Copyright Infringement Cases

In Spooner v. EEN, Inc., 2011 WL 261178 (1st Cir. July 5, 2011), the First Circuit court of appeals considered a case where statutory damages were greatly outweighed by the attorneys fees awarded by the district court. The decision, helpful to any attorney hoping to get a sizeable fee award, is embedded below.

My book Copyright Litigation Handbook has an entire Chapter 18 titled Costs and Attorneys fees.  In Spooner, the First Circuit clarified that attorneys fees may be awarded "as costs".   So the appellate court does not have jurisdiction unless ALL costs have been fixed below, since it is then not a final judgment.  The Spooner court let the parties remedy the jurisdictional defect.

The various circuit courts of appeal take different approaches in awarding fees and costs. A knowledge of the case law is important to ensure that an application for attorneys fees and costs will be successful.


Spooner v EEN Inc

http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Second Circuit: Zohan Messes With Jaymes Blonde Crime Fighting Hairdresser A Concept Not Protected By Copyright

Jaymes Blonde Messed With by the Zohan

 

In Cabell v. Sony Pictures Ent. Inc., 10-2690-cv (June 24, 2011), the Second Circuit in a summary order affirmed the trial court's grant of summary judgment in a suit for copyright infringment.

Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters’ fighting poses, there is no plausible basis
for a reasonable jury to find that the parties’ respective expressions of the concept of a crimefightinghairdresser are substantially similar. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“....

Cabell v SONY Pictures


 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here