App developers who pay 30% commission fee to Apple via In-App Purchasing should take note of an important legal decision recently presented to the Supreme Court for possible review. The Supreme Court’s decision whether to take the case, and its ultimate decision if it does take the case, will directly affect the commission that developers must pay Apple to sell their products using the App Store. In particular, Apple has asked the Supreme Court to limit the scope of a permanent injunction issued against it by a lower federal court in the Northern District of California in Epic Games, Inc. v. Apple, Inc. and upheld on appeal by the Ninth Circuit Court of Appeals. (Epic also filed a separate petition requesting Supreme Court review of the lower court’s rejection of certain antitrust claims, but this blog only discusses the petition filed by Apple.) Continue Reading Will Supreme Court Consider Whether to Allow an Alternative to In-App Purchasing on the App Store?
Digital Media
Celebrity Entertainer Sues Over Video Game Avatar
As real-world celebrities continue to expand the reach of their persona into the digital realm, the potential benefit for advertisers, game developers and esports event promoters is exceedingly high. But with increased opportunity comes increased risk.
A New York Supreme Court recently addressed this risk when it construed the State’s right of publicity statute[1] in a dispute over an NBA 2K18 video game avatar. In Champion v. Take Two Interactive Software, Inc., celebrity basketball entertainer Phillip “Hot Sauce” Champion sued the video game developer, alleging violation of his right to privacy for Take-Two’s use of his name and likeness. The Court ultimately dismissed the lawsuit, but not before it provided a helpful discussion of New York’s publicity statute and its modern application to the esports industry.
Continue Reading Celebrity Entertainer Sues Over Video Game Avatar
Deadline Approaching: Action Required by December 31 To Avoid Losing DMCA Safe Harbor Protection
The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do.
Continue Reading Deadline Approaching: Action Required by December 31 To Avoid Losing DMCA Safe Harbor Protection
Federal Circuit Won’t Review USPTO’s Alice Guidelines
On March 10, 2016, the Federal Circuit ruled that it cannot review the U.S. Patent and Trademark Office’s patent-eligibility guidelines to examiners on how to apply the Supreme Court’s Alice ruling. The appeals court held that could not consider the USPTO’s Interim Eligibility Guidance because it did not create any substantive or procedural right enforceable against the USPTO. In re Smith, Case No. 2015-1664, 2016 WL 909410, (Fed. Cir. Mar. 10, 2016) (precedential).
Continue Reading Federal Circuit Won’t Review USPTO’s Alice Guidelines
Federal Circuit Narrows Claim Construction Options in Game Controller Suit
By Ryan Lindsey and Nick Setty
In Thorner v. Sony Computer Entertainment America, LLC (Case No. 2011-1114, Feb. 1, 2012) (Moore*, Rader & Aiken (D. Or. sitting by designation)), the Federal Circuit reiterated the prohibition against importing limitations from the specification and reversed a district court construction depending from consistent uses of the disputed phrase in the specification.
Continue Reading Federal Circuit Narrows Claim Construction Options in Game Controller Suit
Tweet Me! – The Southern District of New York Answers Copyright Questions Raised By Twitter and Twitpic Use
Social media has become a part of everyday life. As Shakespeare has written: "This news is not old enough, yet it is every day news." The minutiae of every moment is narrated through status updates. Digital photographs are taken and instantaneously posted minute-by-minute on the Internet for the world to see. This lightning fast use of social media raises new and different intellectual property challenges which have not been previously addressed by courts. On January 14, 2011, the Southern District of New York addressed a particularly interesting copyright question raised by the use of Twitpic – a service that allows users to post pictures to the Twitter microblogging and social networking website. Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011). Continue Reading Tweet Me! – The Southern District of New York Answers Copyright Questions Raised By Twitter and Twitpic Use
Trademarks In The Veldt: Do Virtual Lawyers Dream Of Electric Trademarks?
In Neal Stephenson’s 1992 science fiction novel, Snow Crash, humans interact as avatars in the “Metaverse,” the collective product of online shared three-dimensional space.[1] As imagined by Stephenson, this “Metaverse” has been created by all virtual worlds[2] – it is an augmented and enhanced physical reality, a physically persistent virtual space.[3] The novel is set in Los Angeles during the early 21st Century. The federal government of the United States has relinquished its authority to private entrepreneurs and organizations. Franchising, individual sovereignty, and private automobiles reign supreme. Highway companies compete for traffic in the real world while the Metaverse is populated and travelled by user-controlled avatars and system daemons.Continue Reading Trademarks In The Veldt: Do Virtual Lawyers Dream Of Electric Trademarks?
Content Monetization: What’s Working?
Digital Media Law Forum at the Commonwealth Club Silicon Valley
On May 13, 2010, at the Computer History Museum in Mountain View, CA, a panel of experts from Yahoo!, Funny or Die, United Talent Agency, Wired.com, and Sheppard Mullin examined the new business models for content creation, distribution and monetization.Continue Reading Content Monetization: What’s Working?
Branded: Product Placement and Video Games
Video games and feature films have a lot in common. Both tell stories and have exciting visuals and music. Although one is "interactive," recent Blu-ray HD discs are now turning linear films into more immersive, interactive experiences. Rights and talent deals for both have likewise followed a path towards convergence with terms and consideration often being negotiated and drafted the same way. Nowhere is this trend more obvious than the increasing popularity of product placement in enhancing the economic value of video games by making the game play more realistic while providing increased marketing value and good will by allowing the game developer and product owner, generally at no out-of-pocket cost, to reach new audiences.Continue Reading Branded: Product Placement and Video Games
Gibson’s Patent Action Against Activision Hits Wrong Chord With Court In “Guitar Hero” Dispute: Summary Judgment Granted
Activision licensed the Gibson trademark and trade dress in November 2006 in connection with Guitar Hero’s "custom guitar controller peripheral." Activision paid a one-time fixed license fee to cover the term of the license and Gibson agreed to help promote the Guitar Hero product.Continue Reading Gibson’s Patent Action Against Activision Hits Wrong Chord With Court In “Guitar Hero” Dispute: Summary Judgment Granted
The Digital Countdown
The upcoming conversion to digital television will be one of our most important historic dates. No president will be sworn into office. No one will land on the moon. Instead…