By James Kachmar

We’ve become used to lawsuits being filed after a movie, TV show or song becomes a popular hit. Generally, once a show or song hits number one, someone files a lawsuit claiming that the song or show was their “idea”. ABC’s hit show “Lost” is no different. In 2009, Anthony Spinner, a television producer, writer and former studio executive brought an “idea submission” lawsuit against the American Broadcasting Company, Inc. (“ABC”) claiming that it used his ideas to develop the hit television series “Lost”. 

In the mid-1970s, Spinner was retained by ABC to develop a two-hour pilot tentatively called “L.O.S.T.” for $30,000. The script, which was completed in 1977, concerned a group of U.S. Olympians who survive a plane crash in the Himalayas. They proceed through a tunnel and discover a land inhabited by dinosaurs and prehistoric people. ABC decided to pass on the pilot, concluding it would be too expensive to produce. In 1991 and 1994, Spinner met with other executives at ABC to pitch a similar television show; however, the crash would take place in outer space. Once again, ABC passed on Spinner’s idea. 

Nearly 30 years later, an ABC executive came up with the idea of doing a show about a survivor on a desert island that would combine the elements of the hit movie “Castaway” with the hit TV show “Survivor”. He wanted to call this television show “Lost” based on a failed reality based TV show.

 

Continue Reading “Lost” and the Independent Creation Defense

Over the years many articles have been published describing common misconceptions in connection with intellectual property laws, yet rarely do these articles address a common misunderstanding about patent laws which will fundamentally alter many readers’ beliefs regarding the value of obtaining a patent. Some will be shocked to learn that obtaining a patent relating to an invention does not allow the patent holder to actually practice the covered invention.

On many occasions when the subject of patent law arises in conversation, it quickly becomes obvious that many believe that a United States patent gives its holder the right to practice whatever invention is covered by that patent. This belief is incorrect, and operating under this misconception could lead to significant liability. How can this be? Although counterintuitive, the answer is based on the fact that the right acquired under a patent grant is a right to exclude others from practicing an invention. The grant is not an affirmative right to actually make, use, sell or offer for sale the subject matter of the patent.

Continue Reading Surprise! Your Patent Doesn’t Protect You

 

By Anjani Mandavia

The question of what does or does not constitute “fair use” is probably one of the grayest areas of copyright law. But it is an area of heightened interest to those artists who practice what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes found images and photographs, which are often themselves the subject of copyright. Practitioners of “appropriation art” include sculptor Jeff Koons, graphic artist Barbara Kruger, and, of course, pop artist Andy Warhol. The grand daddy of them all was Marcel Duchamp, who, in the period following World War I, pioneered the concept of “readymades” or “found art.”  Koons, Kruger and Warhol all found themselves on the wrong end of copyright infringement lawsuits for their use of other artists’ copyrighted images in their art work. And if Leonardo Da Vinci had been born a few hundred years later, maybe Duchamp too would have found himself having to defend appropriating Da Vinci’s most famous work – the Mona Lisa – by drawing a mustache and a vulgarity on it, and calling it his own.

When bumping up against the strictures of the Copyright Act, appropriation artists turn to the doctrine of “fair use” as a defense, sometimes successfully, (see Blanch v. Koons 467 F.3d 249 (2d. Cir. 2006)), and other times not (see Rogers v. Koons 960 F.2d 301 (2d. Cir. 1992)). The defense itself is codified in the Copyright Act at Section 107, which sets forth four factors that courts should consider in determining if something is a “fair use” of a copyrighted work, and therefore not subject to an infringement claim: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the use; and (4) the effect on the potential market for the copyrighted work. Although the court’s inquiry is not required to be limited to these four factors, as a practical matter most fair use cases are analyzed within this structure.

In recent years the first statutory factor – the “purpose and character of the use” – has taken on increasing importance, and the inquiry on that topic has been described by the Supreme Court as

whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative. . .

 

Continue Reading Cariou v. Prince — Still No Real Clarity Regarding “Transformative Use” In Appropriation Art.

By Audrey Millemann

 

Zombies have become part of our lives. We are fascinated with vampires, but we are obsessed with zombies.   

Our obsession is best evidenced by the tremendous success of AMC’s television series “The Walking Dead,” about the zombie apocalypse. The show first aired on Halloween night in 2010 and was watched by 5.35 million viewers. It premiered worldwide the same week, in 120 countries. The premier was preceded by a zombie invasion (orchestrated by AMC and Fox) on October 26, 2010 in 26 cities throughout the world, including Hong Kong, Taipei, and Los Angeles.  The show is now going strong in its fourth season.

Movies about zombies are also alive and well. Since 1980, zombie movies have brought in almost $1 billion. The highest grossing zombie movie was Sony’s 2009 “Zombieland,” bringing in $75 million since it opened.  “Warm Bodies,” one of several zom-rom-coms (as this genre is now called) has grossed $65 million since it opened three months ago. Other favorites include the “Resident Evil” and “Night of the Living Dead” series, and “Shaun of the Dead.”

Thus, even though zombies have been walking (slowly) among us for hundreds (thousands?) of years, we have really just recently (as evidenced by our 33 years of TV and movies) noticed them. Zombies have been here all along. In fact, they are way ahead of us in the intellectual property world.

Continue Reading Zombies Have IP Too

By Lisa Y. Wang

Back in the day when I used a VCR to record TV shows (one that forwarded through commercials by itself no less), it was impossible to imagine that something like TiVo and DVRs would be in over 50% of American homes. In May 2012, Dish Network took digital recording a step further. Its customers who subscribe to Hopper don’t even have to manually fast forward through the commercials using their remote control. The "Auto Hop" feature of the Hopper automatically skips through the commercials of the all the broadcast network’s prime time lineup by moving from segment to segment of the television show and skipping the ads. The AutoHop feature, coupled with Dish’s "PrimeTime Anytime" feature, essentially allows consumers to concurrently record all prime-time broadcasting programming on all four networks without watching a single commercial without having to move a finger. With Dish Networks’ $14 billion in annual revenue and 14 million subscribers, that’s a lot of commercial revenue going down the drain. As a result, Dish Network has been sued by all four major networks for copyright infringement, and its Chief Executive Officer Charles Ergen has been dubbed by The Hollywood Reporter as "The Most Hated Man in Hollywood." 

In November 2012, Fox Broadcasting filed for a preliminary injunction claiming that Dish Network committed contributory and direct copyright infringement. The judge did not issue the injunction because Fox could not show irreparable harm and sided with Dish. Dish claimed the defense of fair use, which allows for the limited use of copyrighted works without having to obtain permission. Dish argued that it is the customers, not Dish, who are copying the prime-time network broadcasts, and that copying constitutes fair use, and the court agreed. In finding that Dish was not secondarily liable for copyright infringement for their "PrimeTime Anytime" feature, the court cited the Supreme Court case Sony v. University City Studios, 464 U.S. 417 (1984).  Sony held that the copying of television programs by consumers for time shifting was fair use. Since the consumers were not liable for copyright infringement, it was not possible for Dish to be liable for secondary infringement.  Likewise, Dish was not liable for direct infringement by offering "PrimeTime Anytime" to its consumers because the consumer is the one who directs its Hopper to create copies of the broadcasts and Dish merely passively provides the technology used for copying. 

Continue Reading Hopping Into A Lawsuit