Copyright Law

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By Scott Hervey

In what must be the wildest of luck, professional photographer David Slater was visiting a national park in Indonesia when a black macaque grabbed an errant camera and took an array of pictures and self-portraits.   These amazing pictures ran in a July 5 UK news article about the incident. Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency as the owner.

 

Can Canters News Agency own the copyright in the photos taken by this highly intelligent and obviously photogenic monkey?   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.

 

Section 201(a) of the Copyright Act provides that the initial ownership of the copyright in a work protected under the Act vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. So who can be considered an author? According to the Copyright Office FAQ page, "[u]nder the copyright law, the creator of the original expression in a work is its author." Since the monkey was the creator of the pictures in question, is the monkey the author for the purposes of copyright ownership? According to the internal Copyright Offices practices, as codified in Rule 503.03, the monkey may not be considered the author. Rule 503.03(a) states:

 Continue Reading Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business

By Nathan Geronimo

Until recently, if a plaintiff in a copyright infringement case sought an injunction against continued infringement, a reasonable showing that plaintiff was likely to prevail on the merits of the infringement claim gave rise to a presumption of irreparable harm, which is a necessary element a plaintiff must prove in order for a court to issue an injunction. However, in early August 2011, the Ninth Circuit in Perfect 10, Inc. v. Google, Inc., citing the United States Supreme Court decision in eBay Inc. v. MercExchange, L.L.C., stated that this presumption of irreparable harm no longer exists.

Perfect 10, Inc. sought a preliminary injunction against Google for alleged copyright infringement. Perfect 10 creates and copyrights photographs of nude models for commercial distribution on its website, perfect10.com. Access to the website is limited to members who pay a monthly fee.

Perfect 10 alleged that Google’s web search and caching feature allows internet users to access Perfect 10’s copyrighted images for free, which constitutes copyright infringement. Perfect 10 also alleged that because the images are available through Google’s search engine, people are unwilling to pay for a subscription to view the images. This has caused Perfect 10 to lose over $60 million in revenue over the last fifteen years.Continue Reading Ninth Circuit Says No Presumption of Irreparable Harm in Copyright Infringement Cases

Most of us easily will recall one of the first uses of the internet: Napster. While Napster thrilled users with the prospect of “free” music and the ability to locate those obscure songs you thought were lost when your last vinyl LP record broke, its widespread use was devastating to the retail music industry and infuriated Metallica drummer Lars Ulrich. Further, in most instances, the use of Napster to download music and other content also amounted to copyright infringement. Accordingly, Napster was sued, the general public was educated about the fact that stealing copyrighted content is unlawful, and Lars Ulrich was happy.

The end of Napster marked only the beginning of the use of the internet for sharing files over what are called peer-to-peer (“P2P”) networks. Although Napster ultimately was moved to make adaptations to comply with copyright laws, multiple other unrestricted P2P file-sharing tools sprang up in its place. Seemingly overnight, tools like LimeWire Kazaa, and BearShare came into existence to fill the void left by Napster.Continue Reading The Trouble With Torrents

By Jeff Pietsch and Fabiola Larios

In a 4 to 4 split per curiam decision, the United States Supreme Court recently affirmed the judgment of the Ninth Circuit’s opinion in Omega S.A. v. Costco Wholesale Corp. which held that the first sale doctrine is not a defense to infringement claims on products imported in an unauthorized manner into the United States.

Omega S.A. (Omega) manufactured watches in Switzerland and sold the watches globally to consumers through authorized distributors and retailers. Omega first sold watches to authorized distributors overseas. Unidentified third parties eventually purchased the watches and sold them to ENE Limited, a New York Company, which in turn sold them to Costco Wholesale Corp (Costco). Costco then sold the watches to consumers in California. Omega originally authorized the foreign sale of the watches, but did not authorize their sale into the United States. Omega claims that by purchasing the watches bearing the copyrighted design which had been imported into the United Stated by third parties, Costco bypassed the authorized U.S. distribution channels thereby obtaining “gray market” goods. Continue Reading No First Sale Defense on Foreign-Made Copies

By Dale Campbell

The Ninth Circuit has attempted to end the disputes arising from the creation of Facebook. As dramatized in the Hollywood blockbuster, The Social Network, the Winklevoss twins and other Harvard graduates claimed that Mark Zuckerberg stole the idea for Facebook from them. The Winklevosses claimed they conceived and created the idea for a social network, then known as Harvard Connection and later as ConnectU, and hired Zuckerberg to complete the programming.

The Winklevosses claimed that Zuckerberg was involved in all aspects of the website development and business planning for Harvard Connection and acted as a member of the Harvard Connection development team. Zuckerberg was allegedly entrusted with the basic idea for the project and enterprise, including database and website design. Moreover, the Winkelvosses alleged that Zuckerberg was provided information regarding the website’s business model, functionality, concepts, and information to be collected from users. The Winklevosses alleged that Zuckerberg utilized all of this information in creating Facebook and failed to advise the Winklevosses that he had stopped working on the Harvard Connection code but, instead, was developing a competing website. The complaint alleged a variety of business torts including copyright infringement, misappropriation of trade secrets, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, and interference with prospective economic advantage. Continue Reading At Some Point, Litigation Must Come To an End