Copyright Law

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 By: Lisa Y. Wang

This month, the Trademark Trial and Appeals Board ruled that Bottega Veneta, a luxury Italian fashion brand, well known for its "weave design" handbags and accessories, could register a trademark for that specific design. Bottega Veneta handbags and accessories do not have obvious logos on the outside, signifying its origin. Instead, the weave patterns, multiple thin strips of leather forming a weave pattern (much like a basket weave) at a 45 degree angle, serves as its "trademark" and source of origin. Bottega Veneta claims that it created this very specific leather weaving technique and pattern, known as intrecciato, in the 1960’s.   Since there is no logo, this easily made weave pattern is constantly copied by fast fashion retailers and other brands, hence Bottega Veneta’s attempt to register a trademark for that specific pattern.

Continue Reading Weaving a Trademark

By James Kachmar

The great reggae musician Bob Marley passed away more than 30 years ago. Nevertheless, litigation surrounding his music legacy continues on. The Ninth Circuit recently issued an opinion in Rock River Communications, Inc. v. Universal Music Group, Inc. that dealt again with the issue of who owns the rights to Mr. Marley’s music. 

Rock River is a producer and distributor of music records. In 2006, it entered into a licensing agreement with San Juan Music Group that granted it a non-exclusive license to “sample” 16 musical recordings performed by Bob Marley and the Wailers. San Juan has been licensing Mr. Marley’s music since 1980 through an agreement with a producer of Mr. Marley’s early recordings, Lee Perry. 

Rock River made a series of remixes based on the recordings it had licensed from San Juan and created an album titled, “Roots, Rock, Remixed.” Rock River intended to sell the album on iTunes, distribute it in record stores, and also had plans to allow the use of one of its recordings in the film “Dear John”.   Rock River was unaware that any entity had disputed San Juan’s right to license Mr. Marley’s early recordings.Continue Reading Roots, Reggae, Remixes – and Litigation

By Lisa Y. Wang

As New York Fashion Week carries on, so does fashion litigation. One brand that is constantly “copied” is Herve Leger, famous for their bandage dress. While a Herve Leger bandage dress can cost you thousands, stores and brands all over have copied the style and sold their own versions of the bandage dress for much less. However, fashion protection for clothing is limited, which is why fast fashion stores are able to copy your favorite runway designs, most of the time without getting sued.

Fast Fashion retailers, Forever 21 in particular, are often successful at trial partly due to the higher standard of creativity required to qualify for copyright protection for fashion items, which courts consider “useful articles,” which is “an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Courts use a higher standard to prevent stifling innovation in the industry – after all, there’s only so many ways you can vary a plaid pattern and a shirt still has to have holes for your arms and head. For example, Express lost a case against Forever 21 – and had to pay Forever 21’s $700,000 in legal fees – because it couldn’t prove that its plaid designs were original enough to be protected.  If Express had won, where would courts draw the line? Next could be polka dots, stripes, etc.  Fashion could come to a screeching halt if one brand had copyright protection over every incarnation of polka dots. Continue Reading A Dress’ Trade Dress

By Scott Hervey

Craigslist operates one of the most well known and widely-used online classified ad services.  Craigslist claims that more than 60 million Americans visit and use Craigslist each month, and they collectively post several hundred million classified ads each year.  3Taps is a technology company that aggregates and republishes real time ads from Craigslist and other services and allows web developers to access such aggregated information.  One developer who used the 3Taps data services for its service offering was PadMapper, a location-based apartment rental search engine with real-time filtering. PadMapper takes aggregated Craigslist home and apartment rental information and pots the various individual postings on a searchable map.

Upon becoming aware of 3Taps and PadMapper’s activities, Craigslist sent them a cease and desist letter, advising 3Taps and PadMapper that they committed various violations of the Craigslist’s Terms of Use and demanding that they “cease and desist your abuse of Craigslist, all violations of Craigslist’s legal rights and all access to and use of craigslist.” In closing, Craigslist informed 3Taps and PadMapper that they were no longer authorized to access or use the craigslist services for any reason and that “any prior license or authorization to use the [Craigslist website or service] is revoked and any access to or use of the [Craigslist website or service] by you or on your behalf is unauthorized.”   Additionally, Craigslist blocked certain IP addresses associated with 3Taps and instituted various technical measures designed to block those IP addresses from accessing Craigslist’s servers. However, it appears that 3Taps used proxy servers and other anonymous proxies to circumvent Craigslist’s efforts to prevent 3Taps from accessing Craigslist’s servers.

When 3Taps and PadMapper failed to comply, Craigslist filed a complaint in the US District Court for the Northern District of California. The complaint alleged numerous causes of action, including claims for copyright infringement, contributory copyright infringement, violations of the Computer Fraud and Abuse Act (CFAA) and violations of the California corollary to the CFAA, the California Comprehensive Computer Data Access and Fraud Act (Cal. Penal Code § 502).

In support of its copyright infringement claims, Craigslist alleged copyright ownership of all user postings. In its complaint, Craigslist alleged:
[E]ach user-generated posting on the craigslist website is itself an original work of creative expression, as it includes unique written descriptions of the goods or services offered for sale, for example, and often include photographs or other creative works. …craigslist either owns or has exclusive rights in its website and all portions thereof, including, but not limited to, the database underlying the website and the user-generated postings on its websiteContinue Reading Craigslist Content Aggregator Continues To Face Copyright Infringement and CFAA Claims

By Anji Mandavia

Currently pending before the United States District Court for the Northern District of Illinois is a case that will determine whether the Estate of Sir Arthur Conan Doyle has any remaining copyright interest in the iconic character of Sherlock Holmes, and his friend and companion in sleuthing, Dr. John Watson.   

The fictional detective and his sidekick first made their appearances in “A Study in Scarlet,” published in 1887. By 1923, Doyle had written and published some fifty-six short stories and four novels wherein Holmes and Watson solved numerous cases through Holmes’ unique analytic and deductive methods, all the while interacting with various supporting characters, including Scotland Yard’s Detective Lestrade, their landlady Mrs. Hudson, Holmes’ brother Mycroft, and his arch-nemesis Professor Moriarty.   Each of those pre-1923 works is now in the public domain in the United States. Approximately ten Sherlock Holmes stories, published after 1923, remain protected by copyright.

Malibu lawyer, and Sherlock Holmes aficionado, Les Klinger, is the author of numerous books and articles regarding the Sherlock Holmes canon. In 2011, he published, as co-editor, a collection of new short stories by contemporary writers featuring Sherlock Holmes and some of his supporting characters, titled “A Study in Sherlock.” In connection with that publication, the Doyle Estate demanded, and Klinger’s then-publisher paid under protest, a license fee for the use of Holmes and the other characters in the story collection.
Continue Reading Character Copyright — Is Sherlock Holmes in the Public Domain?