August 2014

The answer may surprise you.

This dispute over ownership of Facebook ‘likes’ pits the creator of a fan Facebook page for a TV show against the television network that owns the show.  The facts of the dispute are as follows:   From 2008, the CW Network broadcasted the television series “The Game”, a dramatic comedy about the lives of professional football players and their wives and girlfriends.  BET acquired the syndication rights to the series in 2010 and then in 2011 began producing original episodes.

In 2008, when the series was on the CW Network, Stacey Mattocks created a Facebook fan page for the series.  Mattocks did not post any CW or BET owned content and she did not hold the Facebook page out to the public as the “official” series page.  Around October 2010, BET hired Mattocks to perform part-time work managing the series’ Facebook page.  BET then regularly instructed Mattocks to post, or not to post, certain information on the page and provided her with exclusive photos and video clips.  Mattocks posted most of the content on the FB Page, but BET employees also occasionally posted material.  Apparently Mattocks did a good job managing the series’ Facebook page as the number of ‘likes’ grew from around two million to over six million.

In February 2011, BET and Mattocks entered into a written agreement regarding each parties’ rights and privileges regarding the Facebook page. Mattocks granted BET full administrative access to the page, and BET agreed not to exclude Mattocks from the page by changing her administrative rights.  However, it appears that this agreement was silent on which party owned the Facebook page.
Continue Reading Who Owns Facebook “Likes” on Your Page

Recently, Wikimedia (the entity behind Wikipedia) has refused repeated requests from professional photographer David Slater to remove from one of his most famous photos from its royalty free photo collection website.  The photo at issue is a “monkey selfie.” Slater claims he owns the copyright to the photo and Wikimedia is using it without his permission.  Bananas! claimed Wikimedia;  a recent report reveals that Wikimedia editors decided that Mr Slater has no claim on the image as the monkey itself took the picture.

In what must be the wildest of luck, Slater was visiting a North Sulawesi national park in Indonesia when a black macaque grabbed an errant camera and took an amazing array of self-portraits.   These amazing pictures ran in an July 5 article about the incident in the UK’s Daily Mail.  Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency (Slater’s photo agency) as the owner.

Can Canters News Agency or Mr. Slater own the copyright in the photos taken by this highly intelligent and obviously photogenic?   In order for this to be the case, the monkey would have to be an author under the Copyright Act.    And if a monkey can be considered an author, he or she would have to assign or transfer the copyright in the photos to Caters News Agency.
Continue Reading Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business

In a June decision, the U.S. Supreme Court resolved a key issue in patent law: whether a party can be liable for patent infringement when there is no underlying act of direct infringement.  Specifically, the court addressed whether a party who instructs multiple parties to perform different steps of a method patent can be liable for inducing infringement.  The Court’s answer:  no. The case is Limelight Networks, Inc. v. Akamai Technologies, Inc. (U.S. Supreme Court June 2, 2014) 2014 U.S. LEXIS 3817.

Patent infringement is either direct or indirect.  Direct infringement exists when a defendant makes, uses, sells, offers to sell, or imports into the United States a patented product or performs all of the steps of a patented method.  Indirect infringement exists when the defendant does not itself commit direct infringement, but causes another party to do so.  There are two types of indirect infringement: inducing and contributory.  A defendant has induced infringement when it instructs or causes another party to infringe a patent.  For a method patent, a defendant induces infringement if it instructs another party to perform all of the steps of the method.  The party who performs all of the steps is liable as a direct infringer, while the inducer is liable as an indirect infringer.  Contributory infringement, which is not relevant here, exists when a defendant sells or offers to sell a component that can only be used in infringing a patented invention.
Continue Reading No Inducing Patent Infringement Unless There is Direct Infringement

transparentOn June 17, 2014, a federal judge in Illinois granted summary judgment to Stefani Joanne Germanotta against plaintiff, Rebecca Francescatti, in a copyright infringement matter because he found that no reasonable trier of fact could find that Ms. Germanotta’s song, “Judas,” is substantially similar to Ms. Francescatti’s song, “Juda.”  You may wonder, why you should care about these two unknown figures in the music industry, but the truth is, Ms. Germanotta is far from unknown.  In fact, she has been a staple in the pop music industry since she burst onto the scene in 2008 with the release of her album, “The Fame,” which had such hits as “Just Dance” and “Poker Face.”  By now you may have guessed—Ms. Germanotta is none other than Lady Gaga.

In her complaint, Ms. Francescatti alleged that Lady Gaga’s song, “Judas,” from the album “Born This Way,” infringed Francescatti’s copyright in her song, “Juda.”  According to Ms. Francescatti, she worked with co-defendant sound engineer, Brian Joseph Gaynor, to write “Juda” in 1999.  Ms. Francescatti alleged that Mr. Gaynor later collaborated with Lady Gaga in 2010 to create “Judas.”  According to Ms. Francescatti, the two songs have remarkably similar melodies, structure, bass lines, and further similar features.  This allegation was unsupported by expert testimony.
Continue Reading When is Enough Really Enough? The Importance of Experts in Music Copyright Infringement Actions