In December, 2009 the Court of Appeals for the Federal Circuit issued its opinion in Forest Group v. Bon Tool Company (Forest Group v. Bon Tool Co., (Fed Cir. 2009) 590 F.3d 1295) and changed the landscape relating to damages under the “false marking” section of the patent laws. The decision in Forest altered nearly 100 years of precedent by dramatically increasing potential damage awards available to plaintiffs complaining that products are improperly identified as “patented” or “patent pending.”

Continue Reading Forest, Solo, and the Ten Trillion Dollar Man

By: Matthew Massari and Scott Hervey

ivi, Inc. is either an Internet television revolutionary, or just another soon-to-be defunct Internet copyright pirate. The Seattle-based start-up is taking on television content owners and broadcast giants in order to find out.  In a suit filed in federal district court for the Western District of Washington in late September, ivi says that the Copyright Act specifically allows others to retransmit broadcasters’ signals as long as they pay the fees to the broadcasters as spelled out in the Copyright Act. ivi named ABC, CBS, CW Broadcasting, Disney, Fisher Communications, Fox Television, Major League Baseball, NBC Universal, Twentieth Century Fox, WGBH Educational Foundation, and WNET.org in the lawsuit.  

Continue Reading ivi TV – New Media Revolutionary or Copyright Infringer?

By: Matthew G. Massari

Ten years ago, Rick Norsigian visited a garage sale in Fresno, California, and bought a box of sixty-five photographic negatives for $45.  Norsigian claims to have noticed that the negatives resembled Ansel Adams’ Yosemite National Park photos.  He hired an attorney to assemble a team of experts to authenticate the negatives. In a July 21, 2010 press release and a July 27, 2010 press conference, Norsigian and his lawyer proclaimed that the team of experts had analyzed the negatives for six months and concluded that the photos were created by iconic American photographer Ansel Adams "beyond a reasonable doubt." The “expert report,” which at the time of this writing is available on the website located at www.ricknorsigian.com, prominently features Ansel Adams’ name and trademark.  Claiming that the collection is “the lost work of Ansel Adams” from the 1920s or 1930s, Norsigian is now offering for sale prints and posters made from the images for $1,500 to $7,500.

Continue Reading Ansel Adams and Trademark Fair Use

By: David Muradyan

17 U.S.C. § 411(a) requires one to register their copyright prior to filing a copyright infringement lawsuit. What does it mean to “register” one’s work?  Is a copyright registered at the time the copyright holder’s application is received by the Copyright Office (the “application approach”), or at the time that the Copyright Office acts on the application and issues a certificate of registration (the “registration approach”)? Different district courts within the Ninth Circuit followed different approaches. Thanks to a recent Ninth Circuit decision in Cosmetic Ideas, Inc. v. IAC/InteractiveCorp., 606 F.3d 612 (2010), practitioners in the Ninth Circuit now have a definitive answer.

Continue Reading Ninth Circuit Settles District Court Split on Copyright Filing as a Prerequisite to an Infringement Suit

By: Jeffrey Pietsch

A New Jersey Superior Court recently granted summary judgment in favor of online ticket resellers who were sued by the New Jersey Attorney General’s Office for violating New Jersey’s Consumer Fraud Act and Advertising Regulations. The summary judgment was granted by the court based on the immunity provided by Section 230 of the Communication Decency Act of 1996 (CDA).

The CDA was initially proposed in 1996 to regulate indecency and obscenity on the internet. Major parts of the bill were eventually eliminated because they were deemed to violate the first amendment. Section 230 of the bill, however, increased the scope of free speech on the internet by limiting the liability of online service providers for speech made by their customers. Section 230 was enacted as a direct result of the ruling issued by the New York State Supreme Court in Stratton Oakmont, Inc. v. Prodigy Services Co. In that case, the court ruled that Prodigy was essentially a publisher of the words of its customers and therefore could be liable for acts of its customers. Without Section 230 overturning this ruling, the internet landscape would be quite different than it is today.

Continue Reading Online Ticket Resellers Immune Under the Communication Decency Act