Archive | Copyright

I briefly blogged about this question in 2009; now there’s a lawsuit, White v. West Publishing Corp. & Reed Elsevier Inc. (S.D.N.Y. filed Feb. 22, 2012) that argues that such posting does indeed infringe copyright. Here’s my summary from 2009, very slightly edited:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

Note that there is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding [...]

I’m delighted to say that Bill Patry will be guest-blogging this week about his new book, How to Fix Copyright. I’ve known Bill for 18 years, from the time that he was copyright counsel to the U.S. House of Representatives Committee on the Judiciary. He has also been a Policy Planning Advisor to the Register of Copyrights, a full-time professor at the Cardozo School of Law, and a practicing copyright lawyer; and now he is Senior Copyright counsel at Google Inc. (though the book represents his personal views, and not those of his employer). He is also the author of an 8-volume, 6500-page treatise, Patry on Copyright (Thomson/West), a separate treatise on fair use (also West), a prior one-volume treatise on copyright that went through two editions (BNA Books), and many law review articles. Here’s an excerpt of the How to Fix Copyright summary:

The arrival of the Internet was revolutionary, and one of the most tumultuous developments that flowed from it — the upending of the relatively settled world of copyright law — has forced us to completely rethink how rights to a work are allocated and how delivery formats affect an originator’s claims to the work. Most of the disputes swirling around novel Internet media delivery systems, from Napster to Youtube to the Google Book Project, derive from our views on what constitutes a proper understanding of copyright. Who has the right to a work, and to what extent should we protect a rights holder’s ability to derive income from it? Is it right to make copyrighted works free of charge?

How to Fix Copyright offers a concise and pithy set of solutions for improving our increasingly outmoded copyright system. After outlining how we arrived at our current state of dysfunction, the book offers a series of

So District Judge David O. Carter held Thursday in Mattel v. MGA (though I assume that the case will either be appealed, or will settle for something less than the total amount in lieu of an appeal). The Copyright Act specifically provides that the loser — whether plaintiff or defendant — may be ordered to pay the winner’s attorney fees and costs. Whether to award the fees and costs is in the court’s discretion, based on whether the award would sufficiently further the Copyright Act’s purposes (a mushy standard, to be sure). Here’s Judge Carter’s conclusion:

In this case, Mattel claimed that it owned valid copyrights in the concept sketches and sculpts for the “Bratz” line of dolls and that every generation of “Bratz” dolls released by MGA infringed those copyrights. The breadth of Mattel’s infringement claim corresponded with its request for “more than $1 billion dollars in copyright damages” and an “injunction prohibiting MGA from producing or marketing virtually every Bratz female fashion doll, as well as any future dolls substantially similar to Mattel’s copyrighted Bratz works.” This request for relief was predicated on Mattel’s mistaken expectation that it owned the “ideas” in the copyrighted works; and the mere specter of that relief may have clouded MGA’s business prospects, bolstered Mattel’s status, and changed the landscape of the fashion doll industry….

Mattel asserted a copyright claim that was stunning in scope and unreasonable in the relief it requested. The claim imperiled free expression, competition, and the only serious competitor Mattel had faced in the fashion doll market in nearly 50 years. MGA’s successful defense ensured that well-resourced plaintiffs cannot bend the law to suit their pecuniary interests. For these reasons, and pursuant to 17 U.S.C. § 505, the Court awards MGA $105,688,073.00 in attorneys’ fees and $31,677,104.00 in costs.

So holds Fuentes v. Mega Media Holdings, Inc. (S.D. Fla. Jun. 29, 2011), adopting a Magistrate Judge’s Report and Recommendations, though of course in such fair use cases the decision is closely focused on the facts of the case, and offers only a limited precedent for future cases.

Note that there’s apparently some controversy about whether the plaintiff timely filed an objection to the magistrate’s report; the judge accepted the magistrate’s report thinking that the plaintiff wasn’t filing an objection, and plaintiff was surprised by this, since his lawyers apparently thought that the magistrate had given them more time to object. Plaintiff has therefore filed a motion for reconsideration, and objections to the report. It’s possible that the judge will therefore consider the matter again. [...]

Precisely mirroring a hypothetical I have often used in my Intro to IP class, along comes the “Mike Tyson tattoo” case. Tattoo artist Victor Whitmill apparently designed a distinctive tattoo for Mike Tyson’s face (see photo here), and the tattoo adorning actor Ed Helms’ face in the upcoming Warner Brothers’ film “Hangover 2” looks an awful lot like the Tyson tattoo. Whitmill sues for copyright infringement. What result?

To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”

The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration”; though the latter phrase could, I suppose, be so narrowed as to not include the “transitory duration” of, say, Mike Tyson’s life, that would be at odds with about a million copyright precedents. [The “transitory duration” language has been construed to eliminate things like a “buffer copy” of a file inside a computer, [...]