Copyrights – Patent Arcade

Dec

2018

Tattoos in Video Games – A New Right of Publicity?

Yesterday, the New York Times published an article on the use of athlete’s tattoos in video games. While the article regurgitates the usual commentary on the existing current state of the law with respect to tattoos, video games and copyright, it fails to really move the ball forward. The article implies in the very last paragraph (“My tattoos are a part of my persona and identity,” Mr. James wrote in a declaration of support for Take-Two and 2K Games. “If I am not shown with my tattoos, it wouldn’t really be a depiction of me.”), but without going further, that tattoos are part of one’s persona. This got me thinking. Why not use the Right of Publicity in this situation? So let me propose this here, and perhaps start a discourse on how the law should be interpreted and applied by courts.

When a tattoo, created by an artist, is inked onto human skin, the tattoo becomes indelibly fixed on and associated with its human host (e.g., a professional athlete), despite the fact that the tattoo may be conceptually separable from the host. It is generally agreed that tattoos, once inked onto skin, come with an implied license that the host can publicly display the tattoo, including on television and at public events. But what about further downstream uses, such as in video games where host and tattoo are digitally recreated?

Importantly, tattoo artists are not mere innocents in this situation. Tattoo artists do not blindly apply tattoos. They are not unaware of the fact that the person on whom they are permanently affixing a tattoo is a professional athlete or celebrity of some sort. Tattoo artists must necessarily meet the person on which they are applying each tattoo. Thus, tattoo artists cannot be said to be unaware of the host’s identify and/or the context in which the tattoo may be used. They are aware, or at least complicit.

By virtue of the artist’s awareness of the host and the host’s celebrity status, any publicity showing the tattoo on the host in such impliedly licensed events benefits the host–the tattoo becomes part of the host’s persona. Stated differently, the host automatically receives from the tattoo artist an implied license to depict the tattoo as part of the host’s right of publicity. As a caveat, this might apply only to publicity visible tattoos and not to tattoos in more (ahem) discrete locations on the host.

Thereafter, when the tattoo is depicted as part of the host’s persona (e.g., recreated in a video game or as a key element in a movie), such depiction falls within the scope of the host’s right of publicity, and a license is required only from the host for such use. If the tattoo is depicted in isolation from the host, e.g., as a separate work of art not associated with the host’s persona, a license is required only from the artist for such use.

I don’t have time right now to write an entire law review article on this, but I think the economics work out, too. Tattoo artists will be able to charge higher fees based on the notoriety they receive from hosts’ use of their tattoos, and may also be able to charge higher fees when the recipient of a tattoo is a known celebrity or athlete. The market will correct the fee structure once the law is correctly applied.

One unanswered question… how would this affect the “Hangover II” situation? That is, Mike Tyson’s tattoo was recreated on actor Ed Helms’ face. The recreation of the tattoo in the film was intended to reference Mike Tyson’s persona, but was recreated independent of Mike Tyson himself. Whose license/permission is needed in such a context? Mike Tyson’s? Or the tattoo artists? The lawsuit settled, so the court never weighed in. Even if they did weigh in, courts are not presently applying the law as suggested above. I haven’t worked the “Hangover II” situation out yet, and invite others to chime in on this. Perhaps we can work out a more thorough solution than this brief proposal.

In any event, in view of LeBron James’ declaration in support of Take Two and 2K Games (see above link), I might not be the only one proposing this sort of theory. I hope this case goes the distance, and we get some decent law that resolves the issue once and for all.

Jun

2018

Update – PUBG withdraws lawsuit against Epic

PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown’s Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown’s assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic’s lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG’s lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.

It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic – each to the tune of hundreds of millions of dollars – and might not want its investments suing each other. Also, PlayerUnknown’s currently runs on Epic’s Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.

Jun

2018

How do you perform a video game?

Epic Games, Inc. et al v. Mendes et al
United States District Court for the Northern District of California
CAND-3-17-cv-06223, Filed Oct. 27, 2017

We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court’s denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.

Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.

The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that “playing” is different than “performing,” therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court’s hesitation on granting copyright owners the power to “control when and where purchasers of games may play the game.” Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.

The primary focus of Epic’s lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court’s analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court’s willingness to address the issue of gamers posting videos on YouTube. The Court’s interest in the topic may be the result of how popular “Let’s Play” videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic’s response to the Court’s public performance analysis. We will continue to follow this case and provide updates when available.

Aug

2016

Ed Sheeran sued for copyright infringement…. again.

As previously reported, Ed Sheeran was sued back in June for copyright infringement. Well either the sharks smell blood, or perhaps there’s something in the water, but be’s been sued again based on another of his songs, as reported by CNN.

This time Ed Sheeran has been sued by the estate of Marvin Gaye, the same folks who sued (and won, pending appeal) Robin Thicke in the Blurred Lines case. The allegation? That Ed Sheeran’s Thinking Out Loud infringes the copyright in Marvin Gaye’s “Let’s Get It On.” First, listen for yourself:

Ed Sheeran, Thinking Out Loud:

Marvin Gaye, Let’s Get It On:

What do you think? Does this case have legs?

Jun

2016

Listen for Yourself: Ed Sheeran sued for copyright infringement over “Photograph”

This isn’t video game related, but music copyright cases always interest me. First, the details, from Law360:

New York (June 8, 2016, 8:14 PM ET) — British singer Ed Sheeran violated U.S. copyright laws by basing a portion of his hit song “Photograph” on a chorus from another song without first obtaining permission, according to a complaint by two songwriters who seek at least $20 million in damages.
Martin Harrington, Thomas Leonard and HaloSongs Inc. — a publishing company owned by Harrington — allege that the chorus sections of their song “Amazing” are substantially similar to the chorus in Sheeran’s song, according to the complaint filed Wednesday in California federal court.
The songwriters claim that Sheeran and John McDaid, the co-writer of “Photograph,” had access to “Amazing” because a version of it was covered by Matt Cardle, the 2010 winner of the music competition show “The X Factor.” Cardle’s version of “Amazing” peaked at No. 84 on the U.K. singles chart and was widely played on various forms of media, according to the complaint.

Now, decide for yourself. Here are links to the official YouTube videos for each, with positions to start listening to the relevant sections.Amazing (starting around the 1:45 mark):

Photograph (starting around the 2:27 mark):

I can hear some similarities, but there are also differences. Will be interesting to see what happens with this one.

Jun

2016

Atari Games Corp. v. Oman, 979 F. (2d) 242 (Cir DC 1992)

Atari Games Corp. v. Oman

979 F. (2d) 242 (DC Cir. 1992)

This case dealt with the copyright status of video games, particularly whether video games are eligible for registration. Atari Games Corporation released the paddle and ball video game Breakout in 1976. Atari applied for copyright registration for the work in 1987. Copyright Registrar Ralph Oman denied registration on February 13, 1987, and again on May 22, 1987, because the work “did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds.” Atari challenged Oman’s rejections.

The District Court granted summary judgment to Oman, noting that video games are not per se copyrightable, or more creative than other mediums. The Court of Appeals reversed the decision and held that Breakout was copyrightable because it is a fixed work that meets the minimum requirement for creativity in copyright. This is a seminal case that helped establish the copyrightability of video games in general.

May

2016

HUGE win for Google in Oracle API case.

From Law360:

Google won a high-profile jury verdict Thursday that its use of Oracle’s copyrighted Java software code in its Android mobile operating system was protected by the fair use doctrine, clearing the company of liability that could have reached $8.8 billion.

Case Closed: Spry Fox LLC v. Lolapps, Inc.

Spry Fox LLC v. Lolapps, Inc.

Washington Western District Court

Case Number: 2:2012cv00147

Following a
court dismissal of LOLApp’s motion to dismiss, which included the court noting
that copyright protection of video games extended to the elements of plot,
theme, dialogue, mood, setting, pace and character, and, further stating that there was at least a question of fact regarding whether LOLApps had taken these underlying elements from Spry Fox (but perhaps expressed them
using different characters), this case was settled out of court for an undisclosed
sum.

Case closed – sorry for the delay.

Dec

2015

Baby Murlocs and Work For Hire – Activision Blizzard fighting Appeal of Copyright Case

Amanda Lewis v. Activision Blizzard, Inc

Ninth Circuit, Case No. 13-17391

Appeal Filed 11/21/2013

From NDCA Case No. 12-cv-01096

Back in November 2010, a former World of Warcraft game master sued Blizzard alleging copyright infringement based on use of her voice with the adorable baby murlocs in the game. According to the facts presented in that case, Blizzard had sent an email to all GMs inviting them to audition for vocal parts in July 2005. Around 120 GMs, including the plaintiff signed up and attended two recording sessions with Blizzard sound engineers. Later, the plaintiff discovered that her recordings were used in baby murloc sound effects (and also a song for when the baby murloc breaks into dance). The plaintiff contended that the recordings were outside the scope of her employment, that she owned copyright in them, and that they were used without authorization in the game.

mrglgllrlrlglgrgrglgl

In 2012, the Northern District of California ruled in Blizzard’s favor. The court in that case pointed to the employee handbook for Game Masters, which included this portion:

Game Masters are customer service specialists with
expert knowledge of the game who are [] present as
characters within World of Warcraft’s epic fantasy
setting to provide assistance and guidance to players
while also coordinating world functionality. In this
capacity, GM’s serve as the direct link between Blizzard
and its customers. Additionally, GM’s are responsible
for in-game customer support, helping manage our online
community, and assisting with the creation of content
during the ever ongoing development of the game.

(emphasis added). The fact that the plaintiff was paid for her sound recording audition carried significant weight with the court as well as that the plaintiff knew that the recordings would be used in promoting the game. The court held that the work was a work made for hire and that copyright solely belonged to Blizzard, and rendered summary judgment in Blizzard’s favor. The court also awarded attorney’s fees to Blizzard.

Now the case is on appeal to the Ninth Circuit. Per Law360 (subscription required) and an audio recording of the hearing, the plaintiff argues that the lower court misinterpreted the GMs job responsibilities and that the quoted portion of the handbook is in direct contradiction to other portions of the handbook. The plaintiff continues to argue that the sound recordings were made outside the scope of her employment and thus should copyright should belong to her. Blizzard argues that her job responsibilities as stated involved content creation and that the lower court’s decision was sound.

The issues in this case were made a lot easier for Blizzard due to their employee handbook. It is a good practice to ensure that content included in your game was made by employees acting within stated job responsibilities, or subject to an express work for hire agreement / copyright assignment.

We will continue to watch this case for interesting developments.

Dec

2015

1986 Case: Kramer Manufacturing v. Andrews

Kramer
Manufacturing v. Andrews

United
States Court of Appeals for the Fourth Circuit

Decided
February 6, 1986

783
F.2d 421 (4th Cir. 1986)

Plaintiffs
Kramer Manufacturing brought suit against defendants Andrews for copyright
infringement and trademark infringement in violation of the Federal Trademark Act.

Plaintiffs
alleged defendants copied its computer program entitled, “Hi-Lo Double Up
Joker Poker.” Plaintiffs’ game is an electronic card game based on draw poker.
Defendants manufacture similar coin-operated video games.

In their
complaint filed on June 6, 1983, plaintiffs alleged that defendants infringed
its copyright by distributing copies of the Hi-Lo Double Up Joker Poker game.
The allegations included copyright infringement of the computer program itself and the
audiovisuals.

The district court found for the defendants because it said that the flashing card feature in plaintiffs’ pre-existing poker game was not copyrightable and therefore, plaintiffs were not entitled to copyright protection. While the plaintiffs did not place a proper copyright protection notice on their product, the court held that the omission did not forfeit plaintiffs’ rights. Because Kramer registered its copyright within five years of publication, the district court’s finding that the plaintiffs did not make a reasonable effort to add proper copyright notice is erroneous.

Additionally,
plaintiffs alleged that defendants violated the Federal Trademark Act by
falsely designating the origin of the defendants’ version of the game. Specifically, plaintiffs argued that defendants copied the game console and the artwork on the glass panel displaying the video graphics. The Court of Appeals found evidence of intentional and direct copying sufficient to establish a prima facie case of secondary meaning. Therefore, the burden of persuasion shifted to defendants, to which they did not offer rebutting evidence.

The lower court
found for the defendants and the judgment was vacated by the Court of Appeals.
The Court of Appeals found evidence of both copyright and trademark infringement by
defendants.

Dec

2015

1982 Case: Midway Mfg. Co. v. Bandai-America, Inc.

Midway Mfg. Co. v. Bandai-America, Inc.

United States District Court for the District of New Jersey

Civil Action No. 81-3911

Decided July 22, 1982

We are currently updating our site with some posts about older high-profile video game lawsuits. You may have noticed several posts for video game lawsuits from the 1980s.

Plaintiffs Midway Manufacturing and Coleco Industries filed suit for copyright and trademark infringement against defendant Bandai-America. Plaintiffs are the owners of the famous arcade video games Galaxian and Pac-Man. Defendant Bandai-America is a Japanese distributor of handheld video games. Defendant has two handheld video games named Packri Monster and Galaxian.

Plaintiffs asserted a likelihood of confusion between its Galaxian mark and defendant’s identical mark. The court found Plaintiffs were entitled to summary judgment on the trademark issue for the Galaxian mark on the grounds that the mark is distinctive and not descriptive of the product.

The Pac-Man game is an electronic maze-chase arcade game. Players use a joystick to navigate the maze whereby the central character, the “gobbler” maze-chaser, consumes pink dots. The game ends when a monster catches the gobbler. Similar to the Pac-Man game, defendant’s Packri Monster is played using a joystick, whereby the player moves a character through the maze. The Packri Monster gives the illusion of the monster eating the dots in a manner resembling the monster in Pac-Man.

The court found there was a genuine issue of material fact as to whether defendant’s “Packri Monster” mark infringed the “Pac-Man” mark. Additionally, the court found that the plaintiff’s products were copyrightable. However, the court denied summary judgment for Midway for the Pac-Man game, holding that defendant’s game was not substantially similar to plaintiff’s trademark, and therefore there was not a likelihood of confusion.

Nov

2015

1982 Case: Nintendo v. Elcon

Nintendo of America, Inc. v. Elcon Industries, Inc.

United States District Court for the Eastern District of Michigan, Southern Division

564 F. Supp 937

Decided October 4, 1982

Plaintiff Nintendo (at the time) was in the coin-operated electronic video game business, and filed suit against defendant Elcon for copyright and trademark infringement. Defendant is in the business of assembly and sale of coin-operated electronic video games and other video game components.

Plaintiff owns the video game Donkey Kong, and the audio-video presentation of the game is covered by plaintiff’s copyright registration. The certificate of copyright registration is prima facie evidence that plaintiff’s Donkey Kong game is protected and that the copyright is valid.

Plaintiff extensively promoted and advertised Donkey Kong throughout the United States. Donkey Kong is an original audio-visual game with proper copyright protection of the characters, obstacles, background, and sequence of the game plays. Plaintiff entered into a licensing agreement with the Japanese corporation Falcon, Inc. in September 1981, which authorized Falcon to produce the game Crazy Kong. Crazy Kong was identical or similar to Donkey Kong. The game was prohibited from being imported into the United States and the license stipulated the game could only be sold within Japan.

Defendant imports the Crazy Kong games into the United States without authorization from the plaintiff, which the court found to be sufficient evidence to constitute copyright infringement. Because defendant did not obtain plaintiff’s authorization for the publication of the Crazy Kong games, plaintiff cannot lose protection for failing to have a copyright notice on the games.

The court granted plaintiff’s motion for a preliminary injunction, finding that the plaintiff showed there was a substantial likelihood of success on the copyright infringement and unfair competition claims.

Nov

2015

1983 Case: Williams Electronics v. Bally Manufacturing

Williams Electronics,
Inc. v. Bally Mfg. Corp.

568 F. Supp. 1274

United States
District Court for the Northern District of Illinois, Eastern Division

Decided April 20,
1983

Plaintiff
Williams Electronics, a manufacturer of pinball machines, filed suit against
defendant for copyright and trademark infringement. Plaintiff’s pinball game is
called Hyperball. In the game, the player shoots rolling balls at lightning
bolt targets to prevent the bolts from hitting the energy center.

Defendant
Bally Manufacturing is a competitor of plaintiff’s machines and has its own
pinball machines called Rapid Fire. Bally Manufacturing designed Rapid Fire
after its employees saw Hyperball at a trade show in March 1982. Defendant
claims Rapid Fire is superior to Hyperball, and in response plaintiff filed
suit for false representation and copyright infringement.

Plaintiff
provided a certificate of copyright registration for Hyperball to prove the
validity of its copyright. The court stated that the game itself is not
protectable under copyright law, but certain aspects of the work are
protectable such as the audiovisual game components. While defendant made the
same type of game as Hyperball, the court stated the game concept is not
copyrightable.

The
court found that the substantial similarity of Hyperball and Rapid Fire is
irrelevant under copyright law. The court held that the elements which
plaintiff argued are copyrightable are common to virtually all pinball games
and therefore, not protectable. The color, shapes, target placements, ball,
grip handles, and lights are not functional elements of the game and are not
protected. Additionally, the court found the two games were not substantial similar:
Hyperball features thunderbolts, while Rapid Fire features aliens carrying
shields.

The
court found no substantial similarity between the two games and granted
defendant’s motion for summary judgment regarding the copyright infringement.
The court denied summary judgment for the Lanham Act claim, holding that there
were issues of fact which remained regarding representations between the
parties.

Sep

2015

“Happy Birthday to You” in public domain

Good Morning to You Productions Corp., a production company working on a documentary about the song, sued Warner Chappel Music in New York federal court in June 2013, claiming that “Happy Birthday to You” was first copyrighted in 1893 and thus is long past expiration. The suit alleges Warner/Chappell had unlawfully collected millions of dollars in licensing fees for the tune by claiming it holds the exclusive right to control distribution, performances and reproductions of it. Good Morning to You said it had filed suit in response to Warner/Chappell’s demand that it pay a $1,500 licensing fee to use the song in a documentary about the history of the song.

Well yesterday, September 22, 2015, a California Federal judge agreed, and ruled that Warner Chappel’s copyright is invalid, except with respect to a narrow piano arrangement of music to accompany the song. U.S. District Judge George H. King found that Warner had never acquired the rights to the song’s lyrics, according to Tuesday’s decision. In copyright records, court records and several agreements over the use of the song, nowhere was there discussion of the lyrics to “Happy Birthday,” according to the decision. Some records mention the melody or piano arrangement, but not the words to the song, the judge said.

This means that video game developers can use the song “Happy Birthday to You” without fear of the Warner Chappel Music Police sending you a nasty-gram, demanding a royalty. The case is Good Morning to You Productions Corp. et al v. Warner Chappell Music Inc. et al., case number 2:13-cv-04460, in the U.S. District Court for the Central District of California.

Graffiti Artist Sues Jeremy Scott and Moschino

Tierney v. Moschino

United States District Court, Central District of California

Case No. 2:15-cv-05900

Filed August 5, 2015

While not exactly a video game case, we thought our readers might find this of interest.

On August 5, 2015, Plaintiff Joseph Tierney sued Defendants Moschino S.p.A. and Jeremy Scott for copyright and trademark infringement, unfair competition, and violation of the right of publicity.

Tierney is a graffiti artist known as “Rime”, who is famous for his work entitled, “Vandal Eyes”. Vandal Eyes (shown above, left) is a giant mural covering the side of a building, which Rime was asked to create by a Detroit property owner. Defendants are high-end fashion designers, who used Rime’s artwork and fake signature on their clothing line, advertisements, and in media photographs, without Rime’s consent. Defendants used literal copies of the Vandal Eyes mural in their Fall/Winter 2015 Collection. The Collection gained international media attention through the world when it was displayed on runways and worn by celebrities including actress Katy Perry and model Gigi Hadid.

Plaintiff alleges his reputation and career have been damaged by Defendants’ unauthorized use of his artwork. Plaintiff stated that he carefully chose a target audience to display his graffiti artwork, and he deliberately did not associate with Moschino’s fashion line. Additionally, Plaintiff alleges that Defendants benefited from using the mural because Moschino revenues increased by about 10% since the launch of the Collection.

We will continue to monitor this case for interesting updates.

Jul

2015

DECIDED: Archi Comic Publications Inc. v. Penders

Archie Comic Publications Inc. v. Penders

United States District Court, Southern District of New York

Case No. 1:10-cv-08858, Filed November 23, 2010

This case was terminated on July 1, 2013. All claims and counterclaims were dismissed with prejudice. The parties came to a confidential settlement agreement during a mediation session.

Former independent contractor Ken Penders created scripts and artwork for the Sonic comic books, which Sega had licensed Archie Comics to create in 1992. Penders registered copyrights for the work he did for Archie Comics, and in 2010 he sent Archie Comics a letter alleging infringement of his copyrights. Following receipt of the letter, Archie Comics filed this suit against Penders to cancel his copyright registrations and to obtain declaratory judgment and other remedies for breach of contract.

Further details can be found in the original post here.

May

2015

Appeal decided in Garcia v. Google: NO Copyright Protection for Individual Actors in a Motion Picture

In a second major case decided today, the 9th Circuit held that there is no independent copyright held by a performer in a motion picture (film, TV, etc.) work.

As reported by Law360, in an en banc decision the full Ninth Circuit on Monday overturned a highly-controversial panel decision that forced Google Inc. to pull an anti-Islam video from YouTube, calling it a ‘dubious’ copyright ruling that gave short shrift to the First Amendment.

The appeals court’s reversal came in the closely-watched case of Cindy Lee Garcia, an actress who sued Google after receiving death threats based on her role in the incendiary “Innocence of Muslims” — the same film that allegedly sparked riots in the Middle East in 2012.

“[Plaintiff’s] theory … would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act,” the court wrote. “Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.”

This is a good day for copyright law. A decision the other way would have sent Hollywood into disarray and turned the film industry on its head, creating a new threat that countless actors could hold copyright owners hostage for vast sums of unpaid royalties. This case is also important for video game developers who have hired actors as part of the creation process.

Despite the negative impact the opposite decision could have had, that’s not WHY this is a good decision. Rather, a movie, television show, video game, or any other audiovisual work is ultimately the vision a single person (e.g., the director) or entity (e.g., the video game developer or publisher). Allowing actors a copyright right in their individual performances would, by implication, mean that the director does not actually have ultimate control to decide what is and is not included within a film or video game. But that’s the not the reality. The reality is that the director, if she doesn’t like the actor’s performance, requires the actor to reshoot the scene until the actor’s performance is what the director wants the performance to be. Today’s case reaffirms that principle.

Jun

2014

BREAKING NEWS: Supreme Court nails Aereo’s coffin shut.

Not exactly a video game case, but important the world of Copyrights nonetheless. The decision everyone has been waiting for it out. Today the U.S. Supreme Court held that Aereo is equivalent to a cable company, and is performing copyrighted works to the public without paying a license, and therefore they infringe the rights of copyright holders.

The court states:

…we find [Aereo] highly similar to those of the CATV systems in [previous Supreme Court cases]. And those are activities that the 1976 amendments sought to bring within thes cope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform[s]” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and weremand the case for further proceedings consistent with this opinion.

Unless there is a legislation change, that’s the end of the road for Aereo as we know it.

Cloud service provides, however, can breath a sigh of relief. The court interprets the term “the public” to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs. The court further states:

We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired” (emphasis in original)). In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle.

The court also states, in the Syllabus of the opinion, that in view of “the limited nature of the Court’s holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies”

So here’s my initial $.02 on this case.

Aereo will have an initial brief dampening effect on technological development, because of the psychological impact that will weigh on technologists as they are developing new technologies. In the back of their minds, they will be thinking “remember what happened to Aereo? They spent all that money and then were shut down. We don’t want that to happen to us.” However, the Court actually goes out of its way in an attempt to prevent the decision from stifling innovation by limiting its decision to the specific technology used by Aereo. The court clearly articulates that cloud service providers in general should remain unaffected by the decision, and the Court further states that in view of “the limited nature of the Court’s holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies.” So while there may be an initial delay as technologists do a sanity check on their innovations, technology should continue to advance as usual.

The Supreme Court took a common sense approach by telling technologists not to put form over substance. This is the second time the Supreme Court has held that you can’t manipulate technology to skirt copyright laws. They said it to Grokster, and now they’ve said it again to Aereo. If you’re sitting in a technology development meeting at your company, and someone asks “how can we deploy this technology to avoid paying a license fee?”, I’d think twice about that approach, and make sure that you have legal counsel weigh in on the risks associated with that technology. Despite this, the ruling is not a death knell for technology development, and in fact reinforces the viability of cloud computing solutions in general. However, just as the Supreme Court has done here, technologists must take a common sense approach when designing new products to determine whether those products will run afoul of copyright law.

The case is American Broadcast Cos., Inc., et al. v. Aereo Inc., 573 U.S. __ (June 25, 2014).Full opinion is here.

Aereo’s CEO comments on the outcome here.

More news about the case:

Link 1: CIO.com.

Aug

2013

Case Settled: OG International v. Ubisoft

OG International v.
Ubisoft

United States District Court for the Northern District of
California

Case No.: 3-11-cv-04980-CRB, filed on October 7, 2011

This case
initially came about when OG International (OGI) filed for a declaratory
judgment. OGI sought a declaration that
its product Get Up and Dance did not
infringe on Ubisoft’s copyright or trade dress and did not constitute unfair
competition with regards to Ubisoft’s Just
Dance franchise.

When we last posted about this case, Ubisoft had been denied
its motion for temporary restraining order and preliminary injunction. Ubisoft then filed a motion to dismiss. The motion to dismiss revolved around OGI’s
claim that Ubisoft’s pre-suit demand letters did not fall within Noerr-Pennington immunity. The court held that the letters did fall
within Noerr-Pennington because the
letters threatened litigation.
Furthermore, OGI claimed that the letters fall into the sham exception
of the Noerr-Pennington
doctrine. The court held that this
exception did not apply because the standard for the sham exception is that,
“the party seeking to impose liability must establish both that the legal claim
is objectively baseless and that the suit was brought for an anticompetitive
purpose.” OGI’s complaint, however, only
stated the letters had false claims, which is a different concept from the
“objectively baseless”.

The motion to dismiss was granted with leave to amend on
October 9, 2012. After OGI amended its
complaint, the case continued. However,
as of April 25, 2013, the case has been dismissed with prejudice stemming from
an apparent out-of-court settlement between the two parties.

Aug

2013

Case Update: Friedrich v. Marvel et al. remanded for trial

Case Update: Friedrich
v. Marvel et al.

United States District Court for the Southern District of
New York

Case No. 08-cv-01533, filed 2007

Originally
filed in 2007, Gary Friedrich sued Marvel for infringing upon a character, Ghost Rider, that he
created for the publisher.

The District Court ruled in favor of Marvel in a motion for
summary judgment, dismissing the case and holding that Marvel had ownership of
the character. Furthermore, the court
found that Friedrich had infringed upon Marvel’s copyright and he was ordered
to pay $17,000 in damages for profits from the sale of merchandise. The court claimed that it was unnecessary to
look at whether the initial relationship was a work-for-hire relationship or
not because there were two specific instances when Friedrich signed over rights
to Marvel.

After the ruling, Friedrich appealed to the Second Circuit,
and the case has since been remanded to the District Court for trial. A status conference was held on June 27,
2013, to establish how the case will proceed.
As always, as the case progresses, we will update accordingly.

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