Lincoln and Copyrights -- The Real History
William Patry at The Patry Copyright Blog sets the record straight on the history of copyright at the time of Lincoln. The history buff in me says kudos for the fascinating history lesson.
Update on Farting Fred
UPDATE: After recovering a judgment of more than $575,000 on its copyright and trademark claims, Tekky Toys, the manufacturer of the no doubt charming farting doll "Pull My Finger Fred", successfully petitioned the Seventh Circuit for an award of attorneys' fees on appeal of that judgment. Although the Seventh Circuit did find one portion of the fee request excessive (specifically, the claim that it took counsel 33.25 hours at $450 an hour to prepare the fee petition, which consisted of a six-page argument, three-page affidavit and computer-generated billing statements), it still awarded Tekky more than $70,000 in attorneys' fees. The Seventh Circuit's attorneys' fee opinion in JCW Investments, Inc. v. Novelty, Inc., Case No. 05-2498, can be found here.
For the earlier discussion of the battle between Pull My Finger Fred and Fartman, see here.
The History of a Six Second Drumbeat
The Patry Copyright Blog provides a link to a fascinating video tracing the surprisingly long and involved history of a six second drumbeat. Regardless of whether one agrees with the author's comments about sampling or the development of new forms of expression and the role of copyright law in connection with these new forms, the video offers an interesting look at sampling seen from the perspective of a single six second drumbeat. The complexity of the issues surrounding sampling--both legal and cultural--have taken on special significance to me given the firm's representation of George Clinton, who has been described as one of the most sampled artists.
Copyright Claims Not Subject to Contractual Forum Selection Clause
Reading the introductory sentences in the Second Circuit's decision in Phillips v. Audio Active Limited, No. 05-7017, one might have thought that things did not bode well for the plaintiff, Peter Phillips, professionally known as Pete Rock:
"A plaintiff may think that as the initiator of a lawsuit he is the lord and master of where the litigation will be tried and under what law. But if he is a party to a contract that contains forum selection and choice of law clauses his view of himself as ruler of all he surveys may, like an inflated balloon, suffer considerable loss of altitude."
But in the end, things could've been much worse for Pete Rock.
In Phillips, the musician Peter Phillips entered into a recording contract with Audio Active Limited/Barely Breaking Even ("BBE"), under which he agreed to produce no less than ten tracks and of which BBE would be the copyright owner. The recording contract also provided that "[t]he validity[,] construction[,] and effect of this agreement and any or all modifications hereof shall be governed by English Law and any legal proceedings that may arise out of it are to be brought in England." Phillips also signed a letter agreement that was attached to the recording contract, which stated that this letter agreement "shall be subject to the same laws and exclusive jurisdiction as the [recording contract]."
While Phillips was producing the songs under the recording contract, he recorded additional tracks which BBE and another recording company later sought Phillips' permission to release. Phillips denied the request but BBE and others released the additional tracks anyway. Phillips then filed suit against BBE and others alleging breach of the recording contract by BBE for failing to pay the second installment of an advance. Phillips also asserted claims for direct and contributory infringement under the Copyright Act and related alternative state law claims for unjust enrichment and unfair competition based on the defendants' exploitation of the additional tracks created by Phillips.
Two of the defendants moved to dismiss Phillips' complaint on the ground that the recording contract's forum selection clause required Phillips to bring his suit in England. The District Court agreed with the defendants, concluding that the forum selection clause was mandatory rather than permissive and that Phillips had failed to show that enforcing the clause would be unreasonable. As to Phillips' copyright claims, the District Court held that the dispute concerning defendants' right to exploit Phillips' music was primarily contractual because defendants had acquired the music under the recording contract.
Copyright Infringement in the Virtual World
Eros, LLC, self-described as "one of the most successful merchants doing business within the virtual world platform known as Second Life, has sued a fellow virtual world citizen John Doe, "a/k/a Volkov Catteneo, a/k/a Aaron Long," in a real world court, claiming violations of the Lanham Act and copyright infringement by the defendant in the virtual world.
According to the complaint, Eros--through the marketing efforts of its chief executive officer, known in Second Life as "Stroker Serpentine"--has made a name for itself within the virtual walls of Second Life by selling adult-themed virtual objects under the "SexGen" mark. Shortly before filing the complaint, Eros filed both an application to register the mark for "scripted animation system utilizing a defined menu to actuate avatars within a virtual world accessed through a 3-dimensional virtual platform," and a copyright registration application for the computer graphics/animation. Eros apparently promotes its products by advertising and conducting "promotional events" within "virtual adult/social themed clubs" in Second Life.
Eros claims that at least as of April 2007, the defendant began making and selling unauthorized copies of Eros's adult-themed virtual objects using the "SexGen" mark, misrepresenting the copies as authorized and legitimate copies created by Eros, which has resulted "in actual consumer confusion regarding the origin of the copies."
You can find a copy of Eros's complaint, filed in the Middle District of Florida, here.
Karaoke and Willful Copyright Infringement
Opining on the apparently wild popularity of karaoke, the Sixth Circuit in Zomba Enterprises, Inc. v. Panorama Records, Inc., affirmed the District Court's conclusion that Panorama's infringements of Zomba's copyrights were willful, awarding $806,000 in enhanced statutory damages and awarding attorneys' fees to Zomba. Panorama had been manufacturing and selling karaoke CDs since 1998, apparently without obtaining licenses for any of the songs it had released as part of its karaoke packages. Notably, after receiving a cease-and-desist letter from another music publishing company, Panorama ultimately negotiated license agreements with that company. But despite two cease-and-desist letters from Zomba, Panorama continued selling karaoke CDs containing Zomba's songs and did not obtain any licenses from Zomba. Then, after entering into a consent order with Zomba after Zomba asserted 30 counts of copyright infringement, Panorama apparently breached the consent order within a week of its entry by resuming sales of CDs containing Zomba's songs. Based on these facts, the Sixth Circuit readily concluded that "Panorama exhibited a reckless disregard for Zomba's rights" and that "Panorama's reliance on its fair-use defense was objectively unreasonable."
Download of digital music file not a "public performance"
Admittedly, this is not a new decision but an important one that I've intended to get to for some time.
The case, U.S. v. ASCAP, No. 41-1395 (S.D.N.Y., Apr. 25, 2007), arose when the parties--AOL, Yahoo!, RealNetworks and ASCAP--could not agree on a fee for a license to publicly perform ASCAP's repertoire of musical works in the applicants' online services. The specific issue before the Southern District of New York on the parties' cross-motions for partial summary judgment was whether the downloading of a digital file of a particular song constituted a "public performance" of the song under Section 101 of the Copyright Act.
Parsing the definition of "performance" under the Act, which includes the terms "recite," "render" and "play," the Court concluded that "in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception." Distinguishing downloading from streaming, the Court agreed with the amicus curiae RIAA that the download of a music file more accurately constituted a mechancial reproduction of the copyrighted work in the form of a "digital phonorecord delivery" than a "performance" of the song.
Thus, although the Court did not foreclose the possibility that a transmission might constitute both a stream and a download, and therefore meet the definition of "performance," ultimately it concluded that the download of a digital music file does not, standing alone, constitute a "public performance" of the song under the Copyright Act.
Family Guy "Charwoman" Parody Protected
The Central District of California dealt a heavy blow to Carol Burnett's challenge to the Family Guy's parody of Burnett's "Charwoman" character, dismissing her claims for copyright infringement and violations of the Lanham Act without leave to amend and declining to exercise supplemental jurisdiction of her state law claims.
In an episode of the Family Guy entitled "Peterotica," the "family patriarch" entered a porn shop with friends, noting that the shop was cleaner than expected. In response, one of the friends explained that "Carol Burnett works part time as a janitor" and the scene shifted for less than five seconds to an animated figure resembling Burnett's "Charwoman" character mopping the floor next to some blow-up dolls, a rack of "XXX" movies and a curtained room with a sign above it reading "Video Booths." As the character mops, there was a "slightly altered version of Carol's Theme from The Carol Burnett Show" playing. The scene then switches back to the "patriarch" and his friends after which the friends make two remarks relating to Carol Burnett and her parents.
Carol Burnett then sued for copyright infringement, violation of the Lanham Act, violation of California's statutory right of publicity and common law misappropriation. In response, the defendant filed a motion to dismiss Burnett's claims, also bringing a motion to strike Burnett's state law claims under California's anti-SLAPP statute.
Although Judge Pregerson noted how "distasteful and offensive" the segment was to Carol Burnett, the Court had no difficulty concluding that the parody was protected fair use, which precluded both her copyright infringement and Lanham Act claims. The Court did not, however, rule on the defendant's motion to strike Burnett's state law claims, instead choosing to decline to exercise supplemental jurisdiction over those claims and therefore denying the motion to strike as moot.
In concluding its opinion, the Court offered some comments on its view of the broader import of the case:
To some extent this dispute is indicative of just how far the "new media" has come from the "old media." The old media harkens back to days when crude jokes and insensitive, often mean spirited, programing was perhaps found in live night club performances but was not present on television. In the new media, any self imposed restraint essentially has been eliminated. Public figures, such as Ms. Burnett, are frequent targets of parodies and crude innuendo. As Ms. Burnett well knows, it takes far more creative talent to create a character such as the "Charwoman" than to use such characters in a crude parody. Perhaps Ms. Burnett can take some solace in that fact.
However, the law, as it must in an open society, provides broad protection for the defendant's segment.
Farting Dolls & Copyright Law
Given the often staid practice of law, it's hard to resist a fart joke particularly when it appears in the context of a well-written, yet smartly funny discussion of, among other things, copyright law penned by Judge Diane P. Wood of the Seventh Circuit.
The dispute in JCW Investments, Inc. v. Novelty, Inc., No. 05-2498 (7th Cir., March 20, 2007) arose in the context of competing farting dolls. On the one hand was Pull My Finger Fred, described by Judge Wood as a "white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white top and blue pants." When you squeezed Fred's extended finger he, rather unsurprisingly given his name, farts and makes, according to the Seventh Circuit, "somewhat crude, somewhat funny statements" about his bodily noises. On the other hand was Fartman, described as a "white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants." As with Fred, when you squeeze Fartman's extended finger, he emits both farts and jokes about those farts, two of which jokes were the same as those cracked by Fred.
But unfortunately for Fartman, his farts and jokes were no laughing matter for Tekky Toys, the manufacturer of Fred. Tekky Toys sued Fartman's maker, Novelty, Inc. for copyright infringement, trademark infringement, and unfair competition, eventually winning on all of the claims with an award of lost profits, punitive damages (under state unfair competition law) and more than $575,000 in attorneys' fees.
In affirming the judgment of the District Court, the Seventh Circuit dealt handily with Novelty's claim that the District Court had protected too much of Fred in the context of Tekky's copyright infringement claim, extending protection not only to the expression of the idea of Fred but also to the idea or common elements known as scenes a faire, which are "incidents, characters or settings which are as a practical matter indispensable or at least standard, in the treatment of a given topic." The Seventh Circuit disagreed, concluding that it was not the idea of a "farting, crude man" that was protected but rather Tekky's particular embodiment of that concept in the form of Pull My Finger Fred.
It seems to me that Novelty had a tough row to hoe as its president apparently testified in deposition that when Novelty creates a new item, they "try to copy---or try to think of some relevant ideas" and further admitted that his idea for Fartman was based on Fred, whom he had seen in a showroom of a manufacturer of the Fred doll.
William Patry at The Patry Copyright Blog also has an interesting and thorough discussion of Pull My Finger Fred vs. Fartman.
