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Copyright Litigation

Monday, February 20, 2017

Virtual Reality & Copyright Protection


Do existing copyright laws protect virtual reality applications and works?

Virtual reality (VR) involves computer generated simulation of three-dimensional images or environments that users can interact with using special electronics, such as headsets or special gloves.  VR can be described as “near-reality,” and with recent innovations in the field of virtual reality, users are increasingly being immersed in fantastically realistic realms.  The year 2016 was considered a turning point moment for virtual reality due to the release of several new systems, including Oculus Rift.  While thus far virtual reality for video games has been the focus of most creators, several tech companies have indicated that VR will soon be applied far beyond.  In coming years, it may change the way we surf the web and use our computers.


Read more . . .


Sunday, August 28, 2016

Melania Trump’s Speech Raises Copyright Concerns


Are public speeches copyrighted?

Melania Trump, wife of Presidential Candidate Donald Trump, spoke at the Republican National Convention to a massive crowd of enthusiastic voters.  Just moments after the speech ended, however, controversy erupted.  News outlets started reporting that a portion of her speech was strikingly similar to a speech delivered by Michelle Obama, wife of then Presidential Candidate Senator Barack Obama at the 2008 Democratic National Convention. While the Trump campaign has denied that Melania Trump plagiarized any part of the speech, the hullabaloo does raise some important


Read more . . .


Monday, June 27, 2016

Your Work—How To Protect It With Copyright Registration


Are you a musician, artist, or writer and have an authentic work that you would like to protect?  

Your creation does not need to be published in order to file for protection.  However, it cannot merely be an idea.  An idea must, instead, be established in a “tangible medium of expression,” such as through a book, photo, drawing, or piece of architecture.  Moreover, you must be the true owner or author of the work in order to protect it.    

Copyright registration is optional and protection attaches to your work upon creation; however, registration is especially beneficial if you become involved in a lawsuit.


Read more . . .


Monday, February 15, 2016

Protecting Your Copyrights on Social Media

What are the copyright rules for social media?

As more businesses engage in the digital world, the risk of copyright infringement on the internet has become a significant concern for decision makers. In particular, businesses that rely on social media marketing tools to promote their products and services need to be aware of the fact that copyright laws are applicable on the web. 

In addition, companies that establish websites and conduct digital marketing need to be familiar with the existing protocols in place to protect domain names. The Domain Name System is managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a government sponsored entity that coordinates the designation of registered internet domain names under the Uniform Domain Name Dispute Resolution Policy (UDRP).

 As for the use of social media tools like Facebook and Twitter, existing copyright rules must be followed as well. For example, a business owns the creative works that its employees create while they are working for their company. The creative of work of independent contractors and freelances can only be owned with a work-for-hire agreement in place. If your business posts comments on Facebook or Twitter, it is important to ensure that you own these works.

To some extent, businesses are protected from the potential of infringement lawsuits in certain circumstances. The Digital Millennium Copyright Act (DMCA) provides "safe harbor" to online service providers. It limits their infringement liability by requiring them to take down content that could violate a copyright if the owner sends a take-down request.

How to Protect Your Work from Infringement

In addition to avoiding infringement claims, business owners also need to protect their original content. In order to obtain maximum legal protection, it is essential to register your work with the Copyright Office.  By registering your work, you will have a number of rights, including the exclusive right to reproduce and distribute copies of your work. In short, proper registration establishes prima facie evidence of the validity of the copyright. This grants you legal recourse to bring an infringement lawsuit and obtain statutory damages and attorney's fees.

If your business is engaged in social media marketing, it is essential to understand the applicable copyright laws. A qualified attorney can advise you on how to protect your work from infringement, as well as how to avoid an infringement lawsuit.


Thursday, January 21, 2016

Court Rules Monkey Can’t Hold Copyright

Have you seen the “monkey selfie”? The charming photo has been making the rounds on the internet as a court has been considering who holds the copyright to the photo. Does the photographer who set up his equipment near the monkeys own the photo, or does the monkey who snapped the shot? We have been following this case for a couple of reasons: 1. Who doesn’t love monkeys?! 2. It might have important implications for copyright law. 

The facts.

In 2011, British photographer David Slater traveled to the Tangkoko Reserve on the Indonesian island of Sulawesi to do some nature photography. According to Slater:

I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up [of a group of crested macaque monkeys] if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became overexcited and eventually gave me a whack with his hand as he bounced off my back. I knew then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.

Slater published a book, “Wildlife Personalities,” that included the pictures, and the images were widely shared online, including without permission by Wikipedia. Slater asked that the photos be taken off Wikipedia, but the site editors refused, claiming that the images were in the public domain since they were not taken by a human.

While Slater’s argument with Wikipedia was unfolding, the animal rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit in federal court in California arguing that the photos rightly belonged to the monkey, which they identified as Naruto. PETA asked the court to grant Naruto copyright, and to allow PETA to administer funds generated by the copyright on the monkey’s behalf.

Slater asked the judge in the case, U.S. District Judge William Orrick, to dismiss the lawsuit on the grounds that a monkey lacks legal standing.

Judge Orrick recently released a tentative opinion in the case, and he is siding with Slater.

“I’m not the person to weigh into this. This is an issue for Congress and the president,” Orrick said from the bench, according to Ars Technica. “If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that.”

Why this case matters.

This case is important because it highlights the new frontier of copyright law into which the digital age has delivered us. Slater set up his equipment, and worked to compose the shot, but he didn’t actually press the button to take the picture. This is similar to lots of work today where business owners set things up to be created or captured, but they don’t press go, something or someone else does. We are truly in a new frontier, and we must ensure that the law is able to match reality going forward.

Contact Thomas M. Lancia PLLC for your copyright needs.

If you have questions about a copyright issue you or your business has encountered, contact Thomas M. Lancia PLLC to schedule a free, initial consultation


Friday, July 24, 2015

Copyright Suit Against Nike Dismissed

How similar do two works have to be in order for a court to find copyright infringement?

Popular shoe and apparel manufacturer Nike was recently the target of a copyright suit involving it’s famous Jordan brand.  Jumpman, as the logo is referred to, is a silhouette image of basketball star Michael Jordan, jumping to dunk the ball with his left hand.  A photographer recently claimed that this image was taken from a photograph he shot in 1984 and that Nike had been using it for years without permission.

Jacobus Rentmeester filed suit for copyright infringement in federal court in Oregon claiming that the Jumpman logo was derived from the photo he took for LIFE Magazine in the 1980’s.  In 1985, Nike contracted with Rentmeester to use the image for marketing purposes for a 2 year time period.  The Jumpman logo was subsequently created in 1987 and Rentmeester alleged that Nike had been benefitting from the logo derived from his work for almost 30 years.  He claimed that he “guided” Jordan into this pose and that he was therefore entitled to copyright protection.

Nike argued that they took a photo of Jordan in the same pose and used that photo to create the logo.  They also argued that Rentmeester does not have a claim to all images of Jordan in that position and should only be afforded copyright protection in relation to the specific photo he took.  

While the court did find that the images were similar to one another, they eventually sided with Nike.  The court explained that copyright protections vary on a case-to-case basis, and that depending upon the specific facts they can range from broad to narrow.  When there is a wide range of expression, works are entitled to broad protections.  When there is a narrow range of expression, the copyright protections are thin and images must be extremely similar in order to find copyright infringement.  In this case, there was a narrow range of expression and therefore thin protections existed.  The images were not similar enough for them to find copyright infringement.

Thomas M. Lancia handles all types of cases relating to copyright infringement. If you are involved in a copyright infringement issue in the New York City area, contact his office by calling (212) 964-3157 for a consultation today.

Thursday, June 4, 2015

Instagram-Based Exhibit Raises Copyright Questions

Can someone be guilty of copyright infringement for using your images?


It seems like everyone in New York is talking about artist Richard Prince’s latest exhibit, “New Portraits” - a collection of screenshots of other people’s Instagram photos that Prince added his own comments to before printing them out on large canvasses. Gothamist is reporting that works in the collection are fetching upwards of $100,000; which has a lot of people questioning if it is fair that Prince is making so much money off of something that is in a large part the work of others.  

Prince is famous for appropriating other people’s work, making slight changes, and then exhibiting and selling it as his own, but this time people are really questioning whether he has gone too.  Copyright law protects artists, which the photo-takers arguably are, from infringement, in other words, outright copying. But Prince isn’t just printing out the work of others and selling it as his own, he’s adding commentary to the work.

Whether the minor changes Prince makes are enough to transform the art into something new allowing it to become protected under the doctrine of “fair use,” is unclear.  According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”

In past lawsuits over Prince’s work, the artist has defended his work (and won) by arguing that his style of art is commentary and/or criticism, and is thus fair use. Whether that would apply to these new pieces is debatable (despite the fact that Prince literally commented on the original work).  So, unless one of the original Instagram picture-takers takes Prince to court, and the case makes its way all the way up to the United States Supreme Court, this is likely to remain a grey area of law that varies on a case by case basis. 

The lesson that can be learned from all of this is to think carefully about the content you are posting on the internet. Would you be comfortable with someone else taking what you post, adding to it, and then sharing it with others as their own work? If not, you should probably not be posting it. Or you should be prepared to litigate in order to protect it.

Thomas Lancia regularly represents clients in copyright disputes, and has done so for over twenty years. If you think you are the victim of or if you have been accused of infringement, contact New York City copyright attorney Thomas Lancia at (212) 964-3157 for a consultation today. 




Wednesday, May 20, 2015

Considering Copyright Laws This Election Season

Can Political Campaigns Violate Copyright Law?

In some respects, political advertising is given much more leeway than ads for products and services, but not when it comes to copyrights. If you own a copyright to something and it is used as part of political advertising without your permission, it may be a violation of the law.

Because of various state and federal consumer protection and anti-fraud laws, a private business cannot make false claims in advertising, but that is not a problem for political ads, according to Time magazine. If you sell junk food but claim it can be part of a weight loss program, the Federal Trade Commission can order the ad pulled and that the agency review your future ads. If you are a diet pill manufacturer making false claims about your products, you can be fined millions of dollars. 

When it comes to political ads, however, because of first amendment free speech protections, truth is optional. If a broadcaster runs political ads (and they’re a major revenue source come election time) it cannot refuse to air an ad even if it knows the contents are untrue. 

While being untruthful is not a problem for political ads, violating copyright laws is. The most recent example is a video produced by Rand Paul's presidential campaign which ran for a short time on YouTube, according to the Washington Post. The video was blocked due to a copyright claim from Warner Music Group (WMG) thanks in part to an automated system allowing copyright owners to block material on the popular video sharing website. With this system, YouTube matches submissions against a database of copyrighted material when a video is submitted. If they wish, a copyright owner can block a video from being viewed if permission for use of the copyrighted material was not granted.

Paul’s stumbling block was the use of Shuttin’ Detroit Down, a WMG song by John Rich, which was incorporated into the video without permission. It’s a 2009 song about the poor state of the economy. The Post sought comment from WMG but they did not respond.

If you are a copyright owner in the New York City area and see or hear that your material is being used without your permission, the copyright attorneys at Thomas M. Lancia PLLC can help you enforce your rights and protect your interests. If you have any questions or concerns about copyright laws, contact us today at (212) 964-3157.


Friday, April 24, 2015

Jury Verdict In "Blurred Lines" Controversy Finds Copyright Infringement

What do courts consider when determining whether a song infringes on another's copyright?

In a highly-publicized copyright infringement lawsuit, family members of legendary singer Marvin Gaye contended that pop icons Robin Thicke and Pharrell Williams unlawfully encroached on the unique sounds of Mr. Gaye’s hit 1977 song "Got to Give it Up" with their Summer 2013 mega-hit "Blurred Lines."

Eight jurors have now agreed and rendered a verdict of $7.4 million in favor of the Gaye family. According to accounting statements entered into evidence during the trial, "Blurred Lines" earned approximately $16 million. Rapper T.I., who was also named in the suit, was not found liable in the matter since his lyrical contribution to the song was considered in no way related or similar to Gaye's song.

When it comes to copyright laws, those holding the rights also hold the opportunity to defend against any subsequent content or creation that comes close to the protected version. The issue lies, however, in determining how similar a creation must be in order to infringe the copyright – as freedom of speech also comes into play to protect against overly broad or vague copyrights.

When discerning between a similar sound and a true infringement, courts are required to decide if the challenged piece contains “substantial similarity” to the original. Of course, this inquiry involves some level of subjective analysis; what sounds identical to one may sound completely distinguishable to another. Plagiarized music need not be identical to its source, but court opinions have hinged on some of the following issues: 
* Whether chords and notes used are identical
* Using the same title
* Whether lyrics are identical or near-identical
* Whether the copied version contains only a very minor change (e.g., altering the baseline).

For some juries, making a decision on this issue can be extremely difficult. In one famous copyright infringement case between Eagles front man John Fogarty and 1970s icons Creedence Clearwater Revival, the jury actually requested John Fogarty appear in the courtroom to perform the alleged copyrighted song – and determined it sounded similar, not identical.

The attorneys at Thomas M. Lancia PLLC have experience with copyright infringement litigation and will zealously represent your interests. Contact us today at (212)964-3157.


Tuesday, February 17, 2015

F.R.C.P. 68 - Offers of Judgment and Attorneys' Fees

While acting as Plaintiff’s counsel, our firm has recently received a flurry of offers of judgment from competent defense counsel in federal cases.  Why?  I thought I would answer this question and provide a handy chart for employment, copyright and a few other types of cases we handle as plaintiff’s counsel.

A party defending a claim may make an Offer of Judgment under Rule 68 of the Federal Rules of Civil Procedure (the “Offer”), specifying the terms and amount of the Offer.  Rule 68’s language means Defendant is typically the party making the offer and the Plaintiff is usually the party that accepts or rejects it. When the Defendant makes the Offer, the trial court has no discretion to decide whether or not to enter it if it is accepted by Plaintiff.  But if the Offer is rejected, and Plaintiff ultimately prevails but receives a damages award lower than the Offer, Plaintiff’s counsel may not receive statutory attorneys’ fees.  That may ultimately make the Offer more attractive, precisely the effect desired by defense counsel when making the Offer.

            The relevant portion of Rule 68 reads “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”  Fed. R. Civ. P. 68(d).   Clever defense counsel try to craft the Offer to be just high enough to entice an acceptance but still low enough to be a good result for their client.  Counsel must be sure to indicate that costs are included in the total amount of the Offer, or else defendant may be responsible for the plaintiff’s costs after the date of the Offer, even if the plaintiff’s recovery is less than the amount in the Offer, .

In recent cases our firm has handled, many practitioners have argued that a Rule 68 Offer of Judgment unequivocally cuts off attorneys’ fees in all cases.  That’s often true, but not always true.  As a general rule, attorneys’ fees are cut off as of the date of an Offer ONLY IF the statute governing the underlying claim defines attorneys'  fees as part of costs.  If the statute does not include attorneys’ fees as a part of costs, the party making the Offer may still be liable for paying the Plaintiff’s attorneys’ fees even if the amount recovered is less than the amount offered. 

As always, start with the statute.

Statute

Are fees defined as part of costs?

Copyright Act

Yes

Lanham Act

Unclear; Attorney fees may only be awarded in “exceptional cases”

§ 1983

Yes

Americans with Disabilities Act

Yes

Fair Labor Standards Act

No

Title VII

Yes

§ 1988

Yes

ERISA

No

FMLA

No


Wednesday, January 21, 2015

“Goodfellas” Actor Sues “The Simpsons” for Using His Image and Likeness Without Consent

Can a TV show base a character on an actor’s role in a movie without violating the law?

One might argue that all mafia types in TV and film are interchangeable and based on a stereotype. Frank Sivero would likely disagree. The actor filed a $250 million lawsuit against Fox Television Studios, Inc., and 21st Century Fox America, Inc., claiming that his character Frank Carbone from the 1990 movie "Goodfellas" served as the basis for the cartoon character Louie in the television show "The Simpsons."

According to Sivero, he created and developed the Carbone character without a script and based on his own personality. During that time, he was living next door to writers from "The Simpsons," and Sivero alleges that the show appropriated his confidential idea in creating Louie. Sivero seeks damages for the use of his name and likeness, claiming that he is entitled to a portion of the profits from all things "Simpsons" related, including the television show, movie and video games.

Sivero allegedly spoke with producer James Brooks in 1995 or 1996 about being part of the future success of "The Simpsons" and possibly even doing a movie together. In his lawsuit, Sivero asserts that there was never any intention of making a film; rather, individuals associated with "The Simpsons" were studying him further in connection with the Louie character.

It is unclear why Sivero waited so many years to file this lawsuit, although Louie is a recurring character in "The Simpsons" and appeared most recently in an April 2014 episode. Sivero asserts that he has been typecast due to the show's use of his likeness and idea, further damaging him financially.

Thomas M. Lancia has more than 20 years of experience representing clients in the New York City area in matters involving copyright litigation. Call him at (212)964-3157 for a consultation today.


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