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Scott Hervey

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Scott Hervey is a corporate and intellectual property attorney at Weintraub Tobin who works with companies in a variety of different industries. His clients include wineries, restaurants, technology companies, and entertainment/new media ventures. Scott has led his clients through hundreds of matters involving complex acquisitions, licensing, financings, and other transactions. He also assists clients in protecting their valuable brands through trademark infringement litigation, domain name infringement arbitration, and proceedings before the United States Patent and Trademark Office and Trademark Trial and Appeals Board. He discusses IP Law topics on the weekly video series The Briefing.

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By: Scott Hervey

Periscope (owned by Twitter) and Meerkat are two new “live streaming” appsScott-Hervey-10-web which allow users to live stream videos from their phones.  These applications could potentially change the way live sporting or music events are broadcast or change the way news footage is gathered.  They can also be used by a viewer to re-broadcast copyrighted content.  HBO was recently on the receiving end of that lesson when it found out that dozens of viewers were live streaming the season premiere of Game of Thrones.

HBO said that Periscope was responsive to its take down notices, but also added “We feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notification.”   This sounds very similar to the argument Viacom initially made in its protracted copyright infringement litigation against YouTube.  However, in 2010 U.S. District Court Judge Louis Stanton rejected this argument when he found that the Digital Millennium Copyright Act (the “DMCA”) insulated YouTube/Google from Viacom’s infringement claims and granted YouTube’s motion for summary judgment.

Under the DMCA, a “Service Provider” may be entitled to immunity from claims of copyright infringement in four areas: 1) transitory communications; 2) system caching; 3) storage of information on systems or networks at direction of users; and 4) information location tools. While each area would appear to have some application to Periscope and Meerkat’s business, the information storage category is of primary focus.Continue Reading Live Streaming Apps Raise New/Old Copyright Concerns

Scott-Hervey-10-webNorth Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11, 2001. On September 11, 2013, a Fox News producer posted a photograph that juxtaposed the 9/11 photograph with a World War II photograph of four U.S. Marines raising an American flag on Iwo Jima on the Facebook page for the Fox News’ television program Justice with Judge Jeanine. North Jersey Media Group sued Fox, claiming that the posting of the combined image infringed its copyright. Fox news argued that the use was protected “fair use” and moved for summary judgment. The court denied Fox’s motion and Fox is now appealing to the 2nd Circuit.

Fox’s appeal centers around the lower court’s analysis of the first fair use factor: the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative.” A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc, “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
Continue Reading Is Fox News Proposing a New Standard For Determining Fair Use?

What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? First the backstory.

The “Left Shark” in question is a Katy Perry backup dancer who was dressed in a shark costume for Perry’s beach-themed number “Teenage Dream” during the Super Bowl halftime show. The Left Shark (the dancer to Perry’s right) seemed to have forgotten his dance moves — how else could you explain the flailing of fins. The Internet took notice; so did 3D sculptor Fernando Soza.

Soza’s satirical barbs are usually reserved for the politico set, such as Governor Chris Christie wearing a traffic cone and carrying a sign that reads “traffic study”. However, this time he took aim at the Left Shark and created a 3D printed sculpture of one regular shark, one pink shark and one holding a beer bottle.

So what do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? You have the makings for a copyright dispute, of course. What else could there be?
Continue Reading The Left Shark, Katy Perry and Copyright Chum

Recently the 11th Circuit addressed on appeal the question of whether fair use insulates from copyright liability a University which offers to its students a digital repository of reading material culled from third party publications without the benefit of a license.   Three academic publishers filed suit against Georgia State University claiming that the University infringed their copyrights by maintaining a policy which allows GSU professors to make digital copies of excerpts of their books available to students without paying them a royalty.  Prior copyright cases known as the “course pack cases” – cases in which commercial copy shops were found to have infringed copyrights by printing course packs containing excerpts from third party publications without permission from the publishers – seemed to dictate a finding of infringement.  However, of the 74 instances of infringement alleged, the lower court found that the Plaintiffs failed to establish a prima facie case of infringement for 26 works and that fair use applied to all but 5 instances.

The fair use of a copyrighted work is not an infringement of copyright.   The four factors a court must consider in determining whether fair use applies are: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original.
Continue Reading Cambridge v. Becker – A Copyright Win For Publishers or an Enlargement of Fair Use?