The "work made for hire" doctrine is a major exception to the fundamental principle that copyright ownership vests in the person who created the work. The significance of this doctrine is that, as the copyright owner of the work, an employer will own all exclusive rights to the work and may freely commercialize the property to its fullest extent. This article examines the provisions and case law underlying the "work made for hire" doctrine and provides some practical advice for employers when hiring an independent contractor or an employee who may create an original work during the course of the parties’ relationship.Continue Reading Ownership Issues Underlying the “Work Made for Hire” Doctrine
“Making Available” is Copyright Infringement in File Sharing Case
By Jeff Pietsch
Last week, a judge for the United States District Court in Arizona has granted a summary judgment in favor of recording companies. The judgment finds the defendant, Jeffrey Howell, liable for copyright infringement for illegally sharing music files. Even though there was no evidence that the defendant actually distributed the music files, the judge found the defendant violated copyright laws by making the files available for distribution. This case is significant because it is the first case that specifically states that “making available” equates to distribution under copyright laws.Continue Reading “Making Available” is Copyright Infringement in File Sharing Case
Experts and Summary Judgment
Intellectual property litigation relies heavily upon the use of expert testimony. The Ninth Circuit Court of Appeals recently analyzed the intersection of Federal Rules of Evidence, Rule 702 and the ruling in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”) concerning the admissibility of expert testimony and Federal Rules of Civil Procedure, Rule 56 for summary judgment. Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007). Admissibility of expert testimony must be carefully evaluated for reliability and helpfulness, but that is different than the analysis for whether a triable issue of fact is established.
The 11th Circuit Reminds All That Copyright Protection For Databases Is Alive And Well
By Scott Hervey
Under contemporary Copyright Law, a database is a “compilation.” A compilation is defined under the Copyright Act as “a work formed by the collection and assembling of preexisting materials or of data….” While the inclusion of a compilation as a protectable work was statutorily introduced in The Copyright Act of 1976, compilations were protected as “books” as early as the Copyright Act of 1790.
In 1991 in Feist Publications, Inc. v. Rural Tel. Serv. Co, the Supreme Court resolved a split among the circuits regarding the elements of a compilation that entitle it protection under the Copyright Act. Certain circuits had adopted what was known as the “sweat of the brow” doctrine which looked at the compiler’s effort – his own expense, skill, labor or money – as the critical contribution justifying protection. Other circuits moved away from the labor/investment approach of the sweat of the brow doctrine, and granted protection to those compilations that were sufficiently original to be considered protectable works of authorship. Continue Reading The 11th Circuit Reminds All That Copyright Protection For Databases Is Alive And Well
Copyright Infringement and the Internet: A Closer Look at Perfect 10 v. Google and Amazon
On May 16, 2007, the 9th U.S. Circuit Court of Appeals sent a mixed message to search engines everywhere – publishing thumbnail images is legal, but a search engine may still be liable if it links customers to other sites that publish certain thumbnail images without authorization. (Perfect 10, Inc. v. Amazon.com, Inc., CV-05-04753-AHM (9th Cir. May 16, 2007) With this ruling, what’s next in the battle between advocating for the free flow of information on the Internet and protecting copyrighted material?
Perfect 10, Inc. (“Perfect 10”) an adult entertainment company that allows subscribers access to nude photos on-line, sued Google, Inc. (“Google”) in 2004 for publishing its photos as tiny images known as “thumbnails” which appear in a user’s search results. When a Google user types in a search and clicks on the resulting thumbnail, the page splits into two frames – the top of the page has the thumbnail with a warning it may be subject to copyright, and the bottom of the page has a full-size image from a third-party website. Perfect 10 alleged Google infringed its copyrights by using its images in thumbnails and by linking users to websites that re-published their photos without authorization. Continue Reading Copyright Infringement and the Internet: A Closer Look at Perfect 10 v. Google and Amazon