Casenotes

Aere-no! The broadcasters win. The new “commercial objective” standard of copyright analysis.

Following the live blog, the bullet points were posted as the decision was being handed down, and upon a quick reading of the case shortly thereafter.

  • The transmission from Aereo to its customer is an infringing public performance.
  • Crazy copyright lineup: Breyer writes for the majority, with Scalia, Thomas and Alito dissenting.Aereo basically set up a cable company, in spite of the “behind-the-scenes technological differences”
  •  The Supreme Court sides with the Ninth Circuit on a copyright case — fancy that!

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Sendee Beware: Receiving DMCA Takedown Requests

Rosen v. Global Net (C.D.C.A. June 20, 2014)

Daisy Fuentes, photographed by Plaintiff Barry Rosen

A cautionary tale. DMCA takedown notices are complete when they are sent to the designated agent, not when (or if) they are received. Global Net listed contact information for DMCA takedowns, and Barry Rosen emailed and faxed one for unauthorized posting of his photographs of a few celebrities (Amy Weber, Daisy Fuentes, and Gena Lee Nolin). Global Net never took down the photos, and Rosen sued (more…)

The “Used” Digital Music Case

Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013)

The Facts

  • A New Kind of Used Record Store
    Music is now bought and sold digitally. ReDigi set up a marketplace for selling “used” digital songs. It removes the song from the seller’s iTunes account, “migrates” it to the ReDigi Cloud Locker, where it can be sold on the ReDigi marketplace.

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The Cardinals Paintings Case

Franklin Mint Corp. v. Nat’l Wildlife Art Exch., 575 F.2d 62 (3d Cir. 1978)

CardinalsOnAppleBlossomThe Facts

  • Paint Me a Cardinal
    In 1972, Ralph H. Stewart wanted to start the National Wildlife Art Exchange, to commission and sell limited edition wildlife prints. Stewart hired the big deal wildlife artist Albert Earl Gilbert (http://albertearlgilbert.com/) to paint a watercolor of cardinals, based on normal source materials like photos, sketches, and two stuffed cardinals to study for his cardinal painting. Gilbert made the painting “Cardinals on Apple Blossom.”
  • Falling Out
    Gilbert and National Wildlife had a falling out, leading to some question about the ownership of the rights in the painting. (more…)

The Case of the Public Doyle-main

Image*

The Trend of Enforcing of Copyright Term Limits

Understandably, intellectual property owners try to extend copyright protection for their successful works and characters beyond their term. Superman, Micky Mouse, Betty Boop, Amos and Andy, the song “Happy Birthday,” and any number of other characters and works have been involved in attempts to extend the creative monopoly of copyright. Sometimes owners simply ask Congress to extend the term, sometimes owners claim trademark protection when they’re really trying to protect the copyright, or offer creative copyright theories to skirt around the notion that copyright protection shall exist “for limited times” as mandated in the Constitution. However, a recent trend in courts has popped up, enforcing those copyright limits against intellectual property owners, and rejecting efforts to further extend protections of works that otherwise might have entered the public domain. See, e.g., Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958 (9th Cir. 2011). Today’s decision in Klinger v. Conan Doyle Estate, Ltd. (7th Cir.) continues the trend. (more…)