Copyright Law

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By: James Kachmar

The Ninth Circuit recently revisited the “Work Made for Hire” Doctrine in connection with a copyright infringement case in US Auto Parts Network, Inc. v. Parts Geek, LLC.  The Ninth Circuit concluded that an employer can be the owner of copyrighted material when it is prepared by an employee in the course of his or her employment under the work made for hire doctrine.

The case arose out of an online auto part business, Partsbin, that was created in the mid-1990s.  Partsbin entered into a licensing agreement with a computer programmer, Lucas Thomason, who had prepared an order processing software program called Manager while self-employed.  Thomason gave Partsbin a “perpetual license to use” the Manager software.  Approximately a year later, Partsbin hired Thomason as its “director of eServices,” where he continued to make modifications and enhancements to the Manager software to fit Partsbin’s business changes.  Over the next several years Thomason, as a Partsbin employee, developed at least four more versions of the Manager software.  Partsbin became an internet success story and in 2006 was acquired by US Auto Parts Network (“USAP”).  The acquisition included its intellectual property.  After the acquisition USAP, hired many of Partsbin’s key employees, including Thomason.  Thomason’s primary role was to “manage” the Manager software by modifying and enhancing it to accommodate the needs of Partsbin.  His efforts created two additional versions of the Manager software.Continue Reading Copyrights and the Work for Hire Doctrine

By: Nathan Geronimo

In a recent case, the Ninth Circuit affirmed the district court’s grant of summary judgment based on the doctrine of laches.  But Justice Fletcher, in a concurring opinion, stressed the fact that the Court’s application of the doctrine to copyright infringement cases was out of step with decisions in other federal circuits, and is likely contrary to congressional intent.

In Petrella v. Metro Goldwyn Mayer, Inc. et al., the plaintiff, Paula Petrella  (“P. Petrella”) sued Metro Goldwyn Mayer (“MGM”) and others for alleged copyright infringement based on the defendants’ use of the movie Raging Bull, which is allegedly based on a book and two screenplays in which P. Petrella has a purported legal interest.  Retired boxer Jake LaMotta and his friend Frank Petrella worked together to write a book and two screenplays on LaMotta’s life.  The works were registered with the U.S. Copyright Office; one screenplay in 1963, the book in 1970, and the other screenplay in 1973.  In 1976, Frank Petrella and LaMotta assigned their rights in the three works to Chartoff-Winkler Productions, who subsequently assigned the motion picture rights to MGM in 1978.  Frank Petrella passed away in 1981, and his copyright renewal rights in the works passed to his daughter, P. Petrella.  (When an author dies prior to the beginning of a renewal period, his successors get his renewal rights even if the author previously assigned the rights.)Continue Reading Aging Bull? Laches Still a Valid Defense to Copyright Infringement Claims (For Now)

By: David Muradyan

In order to prevail on a claim for contributory copyright infringement, a plaintiff must show that a defendant had knowledge of or had reason to know about direct infringement by a third party and that it substantially contributing to the infringing activities. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2, 1019 (9th Cir. 2001). “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (citation omitted).

In a very recent case, the Court held that there was no contributory copyright infringement because the defendant was not aware of its employees’ copyright infringement. In Hitek Software LLC v. Timios Inc., Case No. CV 12-709 CAS (C.D. Cal. June 18, 2012), Plaintiff Hitek Software LLC (“Plaintiff”), a software company who sells its copyrighted programs over the Internet, filed a complaint against defendants Timios, Inc. (“Timios”), Scott Chamberlain (“Chamberlain”) and Y. Sarumaru (“Sarumaru,” and together with Timios and Chamberlain, the “Defendants”), alleging claims for copyright infringement and contributory copyright infringement, among others. Chamberlain was a computer specialist who provided computer services to Timios as an independent contractor but who was later hired as an employee of Timios. Sarumaru was also a computer specialist and was an employee of Timios.Continue Reading No Contributory Copyright Infringement in Software Copyright Infringement Case

By: Scott Hervey 

Businesses that feature music, either in the background, through a DJ, or live, must secure a public performance license from one or both of the major U.S. performance rights organizations, ASCAP and BMI.  The corporate operator of the Southern California chain of Roscoe’s House of Chicken and Waffles, East Coast Foods, Inc., learned this lesson the hard way; so did East Coast’s owner.  It came as no surprise that the Ninth Circuit upheld a district court’s finding of copyright infringement against the corporate operator of the restaurant chain.  What should be a wake up call for all business owners is that East Coast Foods’ president and primary shareholder, Herbert Hudson, was held individually liable for vicarious copyright infringement. 

East Coast operates a number of Roscoe’s House of Chicken and Waffles throughout Southern California, including a location in Long Beach.  Herbert Hudson is the sole officer and director of East Coast.  Attached to the Long Beach Roscoe’s is a bar and lounge area called the Sea Bird Jazz Lounge.Continue Reading Roscoe’s House of Chicken and Waffles Runs Afoul Of Music Publishers

By: Zachary Wadlé

The recording industry has been hard hit over the past decade.  With the advent of mp3s, iPods, and iTunes, the entire industry business model has been upended.  Unfortunately for record labels, the hits just may keep on coming.  Courtesy of the Copyright Act of 1976, record labels could soon lose copyrights over hugely popular songs authored from the late 1970’s forward that generate substantial licensing cash for the industry.  Beginning in 2013, some of the most popular musical works of this era will likely be at the center of a hard-fought battle over future ownership rights.

The Copyright Act of 1976 permits the artists of copyrighted works to terminate a grant of rights and reclaim their ownership of the works under certain conditions.  For works created on or after January 1, 1978, artists can reclaim rights to these works beginning 35 years after the original grant, which starts in 2013.  The previous copyright law required artists to wait at least 56 years to reclaim their rights.  Congress’s move to revise the copyright law in1976 and shorten the time artists must wait to reclaim rights was driven by the belief that new artists tend to sign bad deals when they’re young, hungry, and largely unknown to the public.  Congress determined that such artists deserved the option to own their compositions sooner than allowed under the previous copyright law, especially should their tunes prove to be popular (and lucrative to the record label who signed them to a presumably one-sided deal).Continue Reading Recording Industry Braces For Potential Impact of 1976 Copyright Act Termination Rights