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A Thin Line Between Artistry and Architecture

September 21, 2010 by · Comments Off
Filed under: Business, Copyright Articles, law, Uncategorized 

The line between artistry and architecture is just as thin as the copyright protection given to architectural drawings according to an opinion denying summary judgment in the case of The Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, Civil Action No. 3:09cv358 (E.D. Virginia).  The technical elements of architectural drawings can sometimes overshadow the artistic and creative elements.  Nonetheless, architectural works are a protectable subject matter under The Copyright Act.

The Copyright Act grants exclusive rights to use and to authorize the use of a creative work for (1) reproduction of the work, (2) preparation for derivative works, (3) distribution of copies of the work to the public, (4) performance of the work publicly, and (5) displaying the work publicly.  Under Section 102(a)(8) of The Copyright Act, an “architectural work” is the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”  Protection will cover the overall form as well as the arrangement and layout of the various unprotected ‘common elements,’ such as doors, windows, rooms, and other standard features.

The John Marshall Law School in Chicago, Illinois is well known in the intellectual property community for its patent, trademark, and copyright curriculum.  Having a similar namesake, The Hotel John Marshall in Richmond, Virginia had its share of copyright issues as the subject of copyright dispute in the Harvestor Case.

The Harvestor Case involved the copyright in architectural drawings for the renovation of The Hotel John Marshall, originally opened in 1929.  The architectural firm originally assigned to renovate the hotel obtained copyright in their drawings.  Another architectural firm was later assigned to the project and used the previous drawings to make their own architectural plans.  The Fourth Circuit determined that copyright protection for architectural works is thin because the overall creative expression reflects a compilation of unprotected common elements uniquely arranged.  However, a thin copyright is still a copyright deserving of protection.

One complicated feature of architectural works is that all building designs prior to December 1, 1990 are not subject to protection.  Therefore, anyone may incorporate building designs constructed or published before this date into their derivative architectural designs.  The problem arises when different individuals claim exclusive rights in derivative works, but appear similar because the works originated from the same pre-December 1, 1990 building design.

A derivative work is a work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.  The standard of originality of a derivative work is low.  In Harvestor, the defendant claimed that the plaintiff’s drawings were undeserving of copyright protection because they lacked the requisite level of creativity to separate the drawings from the original work.  The court held that the plaintiff did make design choices that were worthy of protection.

The line between artistry and architecture may be thin, but it isn’t so thin that technical drawings and architectural works are viewed as one.  Claiming copyright in an architectural work will not also include a claim of copyright in the technical drawings of the work.  Therefore, separate applications will need to be filed to protect both of these features.

It is easy to take the art of architecture for granted because we engage in these creative structures on a daily basis. The choice of stone, the shape of the windows, and the arrangement of other features are all specifically coordinated for some intended purpose.  If you would like further insight on the art of architecture, visit the Muscarelle Museum of Art at The College of William & Mary between September 18 – October 24, 2010 to see two great exhibitions: Architexture: Photographs by David Brashear and Envelopes: Architects’ Unfinished Experiments with Building “Skins.”

Copyright Infringement 101

March 17, 2010 by · Comments Off
Filed under: Business, Copyright Articles, law 

Knowing what exactly constitutes copyright infringement is not always easy. Vendors selling fake CHANEL bags on the street are fairly obvious infringers, but the woman in the neighborhood that makes copies of her favorite MARTHA STEWART cookbook recipes and distributes them to her neighbors is not so obvious. The second case is technically copyright infringement, but would a court really punish a woman for wanting to share a few recipes? The answer is most likely not, but there are other forms of indirect infringement that come with legal penalties, and the differences between getting a penalty and escaping prosecution are not always very clear-cut.

Here is a short guide to the three forms of copyright infringement and some cases that illustrate their characteristics and potential penalties:

Direct Liability

Direct Liability is what most people imagine when they think about copyright infringement. It is defined as any unauthorized use of a copyrighted work in violation of the copyright owner’s rights. In order for a copyright owner to prove direct liability copyright infringement, he or she must first prove ownership of a currently valid copyright and then prove that the infringer had knowledge of the copyright and still copied constituent original elements of the copyrighted work. The civil suit claiming infringement must be started within three years of the infringing actions occurring.

What constitutes copying constituent original elements of a copyrighted work? The most common examples are ones such as the CHANEL purse knock-offs mentioned above. Any vendor or individual that manufactures a product that is substantially similar to a copyrighted product and intentionally made to look like a copyrighted product is subject to direct liability infringement penalties. An alternate example was found in the case Mannion v. Coors Brewing Co. (377 F. Supp. 2d 444, S.D.N.Y. 2005). The case examined the copyrightability of photographs and determined that photographs possess three forms of originality that may be subject to copyright protection—their rendition, their timing, and the creation of their subject matter. If these three elements in the offending photograph are substantially similar to the copyrighted photograph then direct liability copyright infringement will have occurred. In this case, the photograph in question was found to be original, but it set a precedent for copyright protection of the visual arts.

Secondary Liability

When direct copyright infringement has occurred, any individuals or organizations that have assisted in the infringement may be found liable for secondary infringement. There are two types of secondary liability—contributory and vicarious—and a person may be found guilty of one, or both.

Contributory Infringement

You may be found liable for contributory infringement if you had knowledge of the direct infringement of the copyrighted material and yet knowingly encouraged or assisted in the infringement. The most well-known case involving contributory infringement is A&M Records v. Napster, Inc. (239 F.3d 1004, 9th Cir. 2001). In this case, the Ninth Circuit Court of Appeals considered the issue of peer-to-peer file-sharing and used contributory infringement to hold Napster liable for the millions of illegal downloads made by Napster users. While users were liable for direct infringement, Napster itself was held liable for both contributory and vicarious infringement both because of their knowledge that the songs were copyrighted material and because the software contained a central indexing system that Napster controlled.

Vicarious Infringement

Though Napster was held liable for both contributory and vicarious infringement, individuals may also be only held liable for vicarious infringement. Vicarious infringement is often unintentional; however, you may be held liable for this type of copyright infringement if you had the right and ability to control the infringement and derived a financial benefit from the infringement.

For example, in a scenario that is being played out in several copyright infringement suits against the online auction website eBay, eBay could or could not be held liable for the selling of infringing goods on its website. Though eBay does not specifically regulate the materials sold on its website unless tipped off by the owners of the copyrighted material about the infringement, it could still be held liable for vicarious infringement if it is determined that eBay did not take sufficient measures to control the selling of “fake” goods on its website. Because eBay earns a commission on the goods sold through the online auction site, it is possible that the company could indeed be held liable though it may not have had direct knowledge of the copyright infringement. The overall verdict in eBay’s case is still up in the air, as some courts have found eBay guilty of secondary infringement while others have asserted that the site takes reasonable measures to prevent the selling of infringing goods and thus is not liable.

Do you know anyone accused of copyright infringment for selling online?  If so, please ask them to answer the below survey.  Your voice matters.

BUSTED or NOT? Copyright & Trademark Infringement Claims Against Online Auction Sellers

March 16, 2010 by · Comments Off
Filed under: Business, Copyright Articles, law, Trademark Articles 

Do you know someone that has been targeted for selling fake goods online (e.g., eBay, uBid, craigslist, etc.)?  Do you know someone who was been offered amnesty if they immediately settle and send in a large chunk of money?   If so, please forward this link to the survey and ask them to confidentially take our survey.

Our firm has seen a large increase in potential clients who have been threatened with emails (and letters) seeking large amounts of money and offering amnesty from criminal liability.  Any information submitted will be held in confidence and will be used to analyze information about online sellers that have received a communication alleging copyright infringement, trademark infringement or other causes of action.

Thank you!

“Hot News” Doctrine Revived?

July 18, 2009 by · Comments Off
Filed under: Copyright Articles 

Author: Ed Nunes, Summer Associate & 3rd year student at William & Mary Law

One of the fundamentals of copyright law is that it doesn’t protect facts.  For something to be copyright protected there must be a modicum of creativity in producing the work, and what creativity could there possibly be in reporting the facts?   Yet, the “Hot News” doctrine stands as an exception to this rule that the Associated Press (AP) has been asserting in recent courts filings.

The Revival of a Doctrine

In 2007 the AP sued, and eventually reached a settlement with, Moreover Technologies Incorporated a web news aggregator for copying AP stories.  In 2008 they struck again, this time at the aggregator All Headline News.  This newest case settled on Monday, July 13th, 2009, depriving the courts the opportunity to look at an antique legal doctrine that was central to their claims.  A legal doctrine that was originally created in response to breaking news stories during World War I.

It all Began with the AP and a War

During World War I there were two competing major news services: The International News Service and the Associated Press.  At the time the only way to get current news of the war in Europe was through the government owned telegraph lines.  After INS’s unfavorable reporting on British troops, the British government barred them from using the telegraph lines, ending their ability to cover the war.  INS, however, created a new business model taking advantage of the US time zones.  When the AP released their morning news on the East coast describing the war in Europe, the INS would simply read the stories, rewrite them, and print the information in their morning edition in the later time zones.  Note: INS was also rumored to be stealing the news stories before publication through bribes and other nefarious means.

The AP sued the INS, won their claim, and in 1918 the “Hot News” doctrine was born, giving news reporters a quasi-property right in the information they report.

What’s the Deal?

The idea behind the “Hot News” doctrine is this — the US government wants to encourage the collection of news, as this is a valuable service.  When third parties can effectively report the news without expending any effort gathering the news they undercut the profits of those who do engage in news gathering (a “free-rider “problem).  The courts gave news agencies a short-lived property right in their news so that they can recoup the costs of collecting the news before the information is free to use by all.  This idea is very similar to reasoning behind copyright law (to incentivize “artistic” expression instead of news gathering/reporting).

Sounds Great, What’s the Problem?

Copyright law is a balancing act, with the desire to incentivize authors to create works on one side, and the value of the general public to freely use those works on the other.  Even with works that everyone agrees should have copyright protection it is difficult to determine how to weigh the competing interests (one only has to look at the controversies regarding music/file sharing to see the struggle between copyright holders and the public’s right to use and enjoy copyrighted work).  News agencies, however, have a property interest in facts, which stands against the general copyright law, makes the issue even more entangled.

While the “Hot News” doctrine has not been tested in courts in recent years, the repercussions of such a doctrine could stretch far.  It becomes a question of how strong is this property right in the news and to whom does it apply.  The 1918 decision seems just, or at least had good public policy in mind, but what about in today’s environment of blogging, twittering, online news papers, and the lightning speed of the web.

Some Things to Think About.

Suppose you are sitting in the park and randomly you see a famous celebrity walk by and say into his phone that he is divorcing his wife.  Three seconds later you are on your phone twittering the latest celebrity gossip.  A news site sees your post, and immediately runs a headline on their web page.  Did they just violate your ownership right in that piece of news?  What if it’s a not-for-profit blogger who copied the news from your post?  What if instead of twittering, you posted it on your blog that you use as your primary source of income?  The variations on this hypothetical are numerous, but they all come to the same questions: Should a person have a property right in a fact?  And if so, when?

I think we can all agree that news gathering is an important activity, but maybe it doesn’t need to be incentivized in the same way it did 91 years ago.  As the world becomes more connected news reporting becomes decentralized.  Major events are twittered and live blogged and dispersed throughout the web with pictures and movies by anyone with a cell phone well before they are printed in the morning addition.  In 1918 INS v. AP helped hold the news agencies together.  And while investigative journalism can’t be replaced by average Joe with a cell phone, maybe it’s time the courts took a better look at how the law is subsidizing large centralized news agencies, possibly to the detriment of the public at large.

Press Release – NC Lawsuit Against YouTube

June 14, 2009 by · Comments Off
Filed under: Business, Copyright Articles, Online Privacy, Press release, Trademark Articles 

In2Focus Films, Inc. et al. (In2Focus) filed a counterclaim in federal court on June 5, 2009, against Champboat Racing, LLC (Champboat), as well as asserted claims against numerous other parties including: Michael Schriefer, owner of Champboat Racing; Speedway Group, Inc. (Speedway), which is affiliated with Schriefer and Champboat; Seebold Racing, Inc. (Seebold), which is affiliated with Seebold Sports, Inc. and Tim Seebold, a driver in the F1 Champboat Racing Series; Amsoil, Inc. (Amsoil), the 2009 F1 Champboat Racing Series Sponsor; Singha International, Inc. (Singha), a Thailand-based sponsor of the F1 Champboat Racing Series; and Youtube, Inc. (Youtube).

After violating several contractual agreements, ChampBoat distributed In2Focus’s copyrighted video without permission. When In2Focus demanded the removal of these copyright protected video clips, ChampBoat sued In2Focus for tortious interference of contract, among other things. During the law suit, ChampBoat admitted that all multimedia works were owned by In2Focus. The counterclaim alleges that ChampBoat never received payment for the vast majority
of the work performed, due in part to at least one check bouncing due to insufficient funds. The Third Parties published, distributed, and hosted unauthorized copies of In2Focus’s videos.

YouTube, often used as a host for illegal copies of popular videos, provides a streamlined process for content owners to request that videos be taken down. Yet, according to In2Focus, YouTube failed to remove all infringing videos despite notification. In2Focus further claims that Seebold, Amsoil, Singha, and ChampBoat all posted In2Focus’s videos to their web sites knowing that the videos were owned by In2Focus and that their posting of the videos was in violation of In2Focus’s

In2Focus seeks to recover outstanding payments in excess of $100,000 for creative works performed during the 2008 F1 Champboat Racing Series, as well as recovery of actual damages associated with the infringement. The damages include reasonable attorneys’ fees incurred in defending the original suit filed by Champboat. A trial date has not yet been set. In2Focus is represented by the law firm of Bambi Faivre Walters, PC. Champboat is represented by The Bray Law Firm.