by Do promotional CDs sent by music recording companies to radio disc jockeys and music critics which contain labels restricting distribution of the CDs and purport to create a license agreement actually create a license agreement between the recording company and the recipient, thereby rendering inapplicable the “first sale” doctrine—an affirmative defense to copyright infringement that allows owners of copies of copyrighted works to resell those copies? In UMG Recordings, Inc. v. Augusto, No. 08-55998 (9th Cir. Jan. 4, 2011) (“UMG Recordings”), the Ninth Circuit answered in the negative. Continue Reading “First Sale” doctrine allows radio disc jockeys and music critics who are provided with promotional CDs to resell such CDs without infringing the copyright holder’s copyright in those CDs
Technicalities Surrounding Statutory Damages Under The Copyright Act Trigger Suit Against Law Firm Prosecuting Online Infringement Actions
By Scott Hervey
The motion picture industry’s battle against cyber piracy took an interesting twist when an individual who allegedly engaged in the illegal downloading of the movie Far Cry filed a lawsuit against the Copyright Group and the law firm that has filed numerous suits against thousands of alleged infringers. To date, the law firm, Dunlap, Grubb & Weaver has filed suit against 20,000 anonymous “Doe” defendants for illegal file trading copies of various motion pictures, including Hurt Locker and Far Cry. Once the firm determines a defendant’s true identity it then sends out a demand letter informing the individual that they have been identified as having illegally downloaded a motion picture and explaining that the plaintiff is entitled up to $30,000 in damages under the Copyright Act for each infringed work (and in cases where the plaintiff can prove that the infringement was intentional, up to $150,000 in damages.) The firm then offers the individual an early opportunity to settle for $2,500 before it is named as a defendant in the complaint. Continue Reading Technicalities Surrounding Statutory Damages Under The Copyright Act Trigger Suit Against Law Firm Prosecuting Online Infringement Actions
Hallmark Cards Raises Unique Defense to Paris Hilton’s Right of Publicity Claim – That’s Hot
by Scott Hervey
This is about a birthday card. Not just any birthday card mind you. This birthday card, produced by Hallmark Cards, depicts a cartoon waitress, dressed in an apron, serving food to a restaurant customer. However, not just any waitress could create such a controversy requiring an appeal to the 9th Circuit. This waitress has, for her head, an oversized photograph of Paris Hilton’s head, and is engaged in witty banter with the customer wherein the cartoon waitress with the oversized Paris Hilton head states Paris’ trademarked (yes, she did file for Federal trademark protection) phrase, “That’s Hot.” What’s all the fuss about? Apparently Hallmark forgot to ask the young heiress if they could use her picture on their card.Continue Reading Hallmark Cards Raises Unique Defense to Paris Hilton’s Right of Publicity Claim – That’s Hot
Taster’s Choice – Appropriation of Likeness and the Statute of Limitations
by In Cristoff v. Nestle USA, Inc., the California Supreme Court issued guidance in determining when the statute of limitations runs on a claim for appropriation of likeness. Russell Cristoff, the plaintiff, was a professional model who posed in 1986 for a photo with him gazing at a cup of coffee. Cristoff was paid $250 for the photo shoot which was arranged by Nestle (Canada).
In 1997, Nestle decided to redesign its label for Taster’s Choice instant coffee but had difficulty locating the artwork that had been used for the original “taster” on its existing label. Nestle decided to use Cristoff’s image because he looked distinguished and similar to the original “taster”. Nestle believed that it could use the image because it had been widely used in Canada. Nestle did not, however, investigate the scope of Cristoff’s consent nor did it ask Cristoff if he would consent to Nestle’s use of his image.
Continue Reading Taster’s Choice – Appropriation of Likeness and the Statute of Limitations
Ninth Circuit Ruling on Texting Provides Guidelines For The Marketing Industry
by Scott Hervey
A ruling earlier this month by the Ninth Circuit provided three guidelines all marketing experts and their counsel should take note of. These guidelines address the extent to which the Telephone Consumer Protection Act (“TCPA”) (and most likely other Federal regulations on telemarketing) impacts texting as part of a marketing campaign.
In the case at issue, Simon & Schuster hired a third party to manage the promotional campaign for a new Stephen King book, including securing a list of 100,000 cell phone numbers from the licensing agent for Nextones. Nextones offers consumers free cell phone ring tones in exchange for the consumer providing various information, including a cell phone number, and agreeing to receive promotions from Nextone, its “affiliates and brands.”Continue Reading Ninth Circuit Ruling on Texting Provides Guidelines For The Marketing Industry