Scott Hervey is speaking at the INTA’s TMA Conference on October 2, 2011. He is part of a panel discussion on the various IP issues that arise in the development, production and distribution of reality television. He is joined by Beth Allegretti of Fox Entertainment Group. For more information click on the picture above.
The last decade has been tough for record companies. Record sales drastically fell with the advent of the internet and with the prevalence of unauthorized music downloading. Now, the record companies face a new foe in the Copyright Act of 1976 (“Copyright Act”). Under the Copyright Act, artists are able to exercise termination rights on grants made for copyrighted works which will allow artists to regain control of their work after 35 years from the date of such grant. This provision of the Copyright Act applies specifically to grants made on or after January 1, 1978. Because 2013 will be the first year an artist may exercise their termination rights, it is likely that record companies will resort to litigation to maintain their rights to such works. One example is the declaratory action filed recently by Scorpio Music and Can’t Stop Productions, Inc. against Victor Willis (aka the Cop or Naval Officer) of the Village People in an effort to prevent the exercise of termination rights for such popular songs as Y.M.C.A. and Macho Man.
Before examining the action filed against Victor Willis, it is instructive to first review and analyze the termination provision of the Copyright Act at issue. Section 203 of the Copyright Act provides for the termination of transfers and licenses granted by an author. Specifically, § 203 states: “In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination.” The following conditions must be met for the termination:
(1) the termination must be made by an authorized person
(2) a 35-year period exists between the grant and the termination date; and
(3) advance notice must be provided not less than two years and no more than ten years before the termination date.
The Court of Appeals for the Federal Circuit recently addressed the issue of the patentability of process (method) claims in one of the first cases decided since the Supreme Court’s 2010 decision in Bilski v. Kappos, 130 S. Ct. 3218 (2010). The case is CyberSource Corp. v. Retail Decisions, Inc., 2011 U.S. App. LEXIS 16871 (Fed. Cir. Aug. 16, 2011).
The plaintiff, CyberSource, owned a patent for a method and system of detecting fraud in a credit card transaction between a purchaser and a merchant over the Internet. According to the patent’s specification, the prior art systems for detecting credit card fraud worked well in face-to-face transactions, but did not work in transactions for the sale of downloadable content over the Internet. The invention, as described in the patent, overcame the problems of the prior art by using Internet address information (e.g., IP addresses, email addresses, etc.) to analyze whether the purchaser’s Internet address was the same as the Internet address previously used with the same credit card number.
Continue Reading Federal Circuit Limits Patentable Processes
By Scott Hervey
In what must be the wildest of luck, professional photographer David Slater was visiting a national park in Indonesia when a black macaque grabbed an errant camera and took an array of pictures and self-portraits. These amazing pictures ran in a July 5 UK news article about the incident. Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency as the owner.
Can Canters News Agency own the copyright in the photos taken by this highly intelligent and obviously photogenic monkey? In order for this to be the case, the monkey would have to be an author under the Copyright Act. And if a monkey can be considered an author, he or she would have to assign or transfer the copyright in the photos to Caters News Agency.
Section 201(a) of the Copyright Act provides that the initial ownership of the copyright in a work protected under the Act vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. So who can be considered an author? According to the Copyright Office FAQ page, "[u]nder the copyright law, the creator of the original expression in a work is its author." Since the monkey was the creator of the pictures in question, is the monkey the author for the purposes of copyright ownership? According to the internal Copyright Offices practices, as codified in Rule 503.03, the monkey may not be considered the author. Rule 503.03(a) states:
Continue Reading Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business
Until recently, if a plaintiff in a copyright infringement case sought an injunction against continued infringement, a reasonable showing that plaintiff was likely to prevail on the merits of the infringement claim gave rise to a presumption of irreparable harm, which is a necessary element a plaintiff must prove in order for a court to issue an injunction. However, in early August 2011, the Ninth Circuit in Perfect 10, Inc. v. Google, Inc., citing the United States Supreme Court decision in eBay Inc. v. MercExchange, L.L.C., stated that this presumption of irreparable harm no longer exists.
Perfect 10, Inc. sought a preliminary injunction against Google for alleged copyright infringement. Perfect 10 creates and copyrights photographs of nude models for commercial distribution on its website, perfect10.com. Access to the website is limited to members who pay a monthly fee.
Perfect 10 alleged that Google’s web search and caching feature allows internet users to access Perfect 10’s copyrighted images for free, which constitutes copyright infringement. Perfect 10 also alleged that because the images are available through Google’s search engine, people are unwilling to pay for a subscription to view the images. This has caused Perfect 10 to lose over $60 million in revenue over the last fifteen years.
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