Intellectual Property Group

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If you use Facebook, you probably already have noticed that many users are posting statements claiming that Facebook somehow acquires ownership of users’ intellectual property that has been posted to that site.  Reacting to this entirely erroneous proposition, many Facebook users have posted very scary and onerous status updates aggressively asserting their intellectual property rights in the materials they have uploaded onto Facebook.  One user posted that they “hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. . . . for commercial use of the above my written consent is needed at all times!”  (Undoubtedly her use of an exclamation point will add significant legal weight when this status update is considered by a court in the forthcoming case of Everyone v. Facebook.)  That same user warns us that violation of her privacy is punished by law, UCC 1 1-308-308 1-103 and the Rome Statute.  Undoubtedly, Facebook is horrified by the prospect of violating either of these statutes.  Or not.

This Facebook user (and legions of other Facebook users who (ironically) have copied her ominous copyright warning) apparently have missed the plainly worded terms governing the use of Facebook’s online services.  While it’s not clear how the Uniform Commercial Code or the Rome Statute possibly could govern the relationship between a Facebook user and the website, the Facebook terms of use agreement clearly states that “you own all of the content and information you post on Facebook . . . .”  The agreement further provides that users merely give Facebook a limited, non-exclusive license to any intellectual property content posted on the website, a license which expires when the content is deleted by the user.  Perhaps these simple contract terms were missed during the analysis of international criminal statutes (which have not been ratified in the United States), or laws related to the sale of goods.
Continue Reading Your Facebook Copyright Notice is More Annoying than Farmville

On May 31, 2014, members of the band Led Zeppelin and its publishers were sued for copyright infringement by Randy California, the former guitarist and front man of the band Spirit.  The lawsuit, filed in the state of Pennsylvania, alleges that a significant portion of Led Zeppelin’s “Stairway to Heaven” was stolen from “Taurus,” a…

transparentYou don’t have to be a Disney enthusiast like myself to be familiar with its latest blockbuster franchise, Frozen.  To date, the film has grossed over 1.2 billion dollars in worldwide box office revenue, making it the highest-grossing animated film of all time, and the fifth highest-grossing film overall.  The fact is, Frozen has taken the world by storm since its November 27, 2013 release, and it does not appear to be letting up as Disney is planning on opening a Frozen themed ride at Walt Disney World and a Frozen musical on Broadway.  Nonetheless, one New Jersey woman is seeking to put an immediate halt on Disney’s cash cow with the filing of her complaint for copyright infringement in the United States District Court for the District of New Jersey.

On September 22, 2014, Isabella Tanikumi—also known as L. Amy Gonzalez, filed a complaint against the Walt Disney Company (“Disney”) alleging copyright infringement because Disney purportedly stole at least eighteen (18) elements of Frozen from her 2010 autobiography, Living My Truth.  Specifically, Ms. Tanikumi has cited the following similarities: (1) both stories involve villages at the base of snow covered mountains; (2) both stories involve two sisters with different colored hair; (3) both stories involve one of the two sisters injuring the other; (4) both stories have two male characters who act as the romantic interest of one of the sisters; and (5) open doors/gates are involved in the endings of both respective tales.  This list is merely illustrative, but for those of you who wish to see the entire list, feel free to read the complaint and its attachment by clicking Isabelle Tanikumi AKA L. Amy Gonzalez v. The Walt Disney Company.  In the interest of providing full disclosure, the remaining similarities do not get much more mind blowing than those stated above.  Regardless, Ms. Tanikumi obviously believes that she has been wronged by Disney, but whether she can prevail on these farfetched claims remains to be seen.
Continue Reading New Jersey Woman Refuses to “Let It Go.”

transparentIn the not so distant past, E & J Gallo Winery (“Gallo”) decided that it was not satisfied with only being a player in the wine business.  It decided to expand his horizons and venture into the tequila business, which is currently filled with such players as Patron, Don Julio, Jose Cuervo, and perhaps most importantly, 1800 Tequila (“1800”).  After placing a significant amount of time and effort into the release of its new tequila, Camarena, Gallo was informed that its supplier, Tequila Supremo, had received a cease and desist letter from Agavera Camichines S.A. de C.V. (“Agavera”), the holder of trademark and trade dress rights for the “1800 Tequila” brand.  Accordingly, Gallo brought suit for declaratory relief in the United States District Court in the Eastern District of California.

Agavera and co-defendant, Proximo Spirits Inc. (“Proximo”), counterclaimed that Gallo’s Camarena bottle design infringes Proximo’s registered trade dress and also constitutes false designation of origin under the Lanham Act and unfair competition under common law.  Gallo sought and prevailed on its motion for summary judgment before the Honorable Judge Lawrence J. O’Neill of the Eastern District of California.  Judge O’Neill found that Proximo failed to raise a genuine issue as to whether its trade dress was distinctive.  Furthermore, it was found that there was no likelihood of confusion between 1800 Tequila and Camarena.  Proximo moved for reconsideration on grounds that its trademark registration and related description of the 1800 Tequila bottle and stopper should have constituted sufficient evidence for a trier-of-fact to rely on in deeming the bottle distinctive.  Nonetheless, Judge O’Neill denied the request.  The court also denied Proximo’s motion to dismiss the declaratory judgment action on grounds that the court lacked subject matter jurisdiction.  As a result, Proximo appealed the decision to the Ninth Circuit to challenge the court’s ruling on the motion to dismiss and its grant of summary judgment on the counterclaims.  
Continue Reading Gallo Whines Its Way Into the Tequila Business

Victims of trade secret theft often can seek a variety of civil and criminal remedies against those who have absconded with proprietary information.  The Ninth Circuit however recently rejected criminal charges in a situation where the claims could be addressed as a civil matter under California’s trade secret laws.

In United States v. Nosal, David Nosal was sued by his former employer, the Korn/Ferry executive search and placement firm.  After leaving Korn/Ferry, Mr. Nosal contacted several former colleagues who were still working with the company and asked them for assistance with his efforts to set up a competing business.  Mr. Nosal’s former co-workers had access to a significant amount of proprietary information on the Korn/Ferry computer system, and assisted Mr. Nosal by using this access in order to provide names, contact information, and other confidential data from Korn/Ferry’s proprietary database to Mr. Nosal.  Although their access to the database was authorized, the employees provided information to Mr. Nosal in violation of a trade secret and nondisclosure agreement with their employer.
Continue Reading Ninth Circuit Limits Application of the Computer Fraud and Abuse Act