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The harm caused to brands by counterfeiting goes far beyond loss of sales or profits.  Fake goods jeopardize public health and safety when a brand’s trademark is applied to a sub-standard and potentially harmful product.  This is especially hazardous for counterfeit medical items, mechanical parts, and food products, to name a few.  What is more, the reputational damage inflicted by low-quality products can be devastating. …
Continue Reading Practice Tips for Combating Counterfeiters: An Action Plan for Brands, Manufacturers and Retailers

The Supreme Court today handed down a far reaching decision throwing out an attempt by Congress to deny the benefits conferred by federal law on same sex couples legally married under state law holding that the Defense of Marriage Act (“DOMA”), as so applied, constituted a deprivation of the equal liberty of persons protected by the Fifth Amendment. In so doing, and perhaps without realizing it, the Supreme Court was also writing an important copyright case.…

Continue Reading DOMA goes down – Copyright goes up – U.S. v. Windsor, Supreme Court, No. 12-307, decided June 26, 2013

By Edwin Komen

On Friday afternoon, June 15, 2012, U.S. District Court Judge Gary Allen Feess, Central District of California in Los Angeles, denied CBS Broadcasting’s application for a temporary restraining order that would have prevented ABC from airing the premier broadcast of its new reality series “Glass House”. CBS complained that “Glass House” infringed the copyright in its long-running “Big Brother” series. Both featured contestants isolated in a confined space competing for prizes, building alliances and fighting with each other while they are systematically voted out of the competition. Judge Feess described these elements as “commonplace”. In doing so, Judge Feess dealt another blow to the admittedly fragile protection for one of television’s most valued commodities…a popular, highly marketable format capable of being translated and locally re-formatted for domestic consumption in local television markets around the world. The frustration of format owners may have well been summarized by Judge Feess, who observed, “When I first heard of Big Brother, I thought it sounded like Survivor in a house.”[1]…
Continue Reading Are Formats The Floor Mats Of Copyright?

By Edwin Komen

The Copyright Office recently published two little-noticed, but potentially far-reaching, announcements in the Federal Register. Collectively they tend to restrict the definitions of “claimant” and “compilation” for purposes of copyright registration. The first, noticed as a rulemaking subject to public comment, issued on May 17, 2012, 77 Fed. Reg. 29257 with written comments due by July 16, 2012 and reply comments due by August 15, 2012. The second is a Statement of Policy, with no right of comment, effective as published on June 22, 2012, 77 Fed. Reg. 37605. Although the Copyright Office does not adjudicate issues of copyrightability, its determinations still carry significant weight with the courts since it is the agency charged by Congress with the task of initially determining whether a work is entitled to copyright protection and, hence, may be registered for copyright.
Continue Reading A Copyright Office Double-Header

By Robert Gerber and Michael Murphy

Recent cases reveal that seeking a reasonable royalty as a copyright remedy can be an uncertain endeavor. Courts have differed regarding which evidentiary factors are relevant and necessary. Parties seeking to apply the reasonable royalty analysis frequently used in the patent litigation arena have sometimes found themselves successful, and other times frustrated.
Continue Reading The Relevance of ‘Reasonable Royalties’ to Copyright Infringement

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

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?

The State Copyright Bureau recently released a new set of copyright pledges registration rules to replace its current system. The "Measures for Registration of Copyright Pledges" (the "Measures") will become effective on January 1, 2011. Copyrights, like other property rights, can be pledged as a financial security. China has not updated its current copyright pledges registration system since it went into effect on September 23, 1996. The key provisions of the Measures are highlighted below.…

Continue Reading China Revamps Its Outdated Copyright Pledges System

The expression "bad facts make bad law" comes to mind when reading the news reports about Righthaven LLC and the Las Vegas Review-Journal ("Las Vegas Review"). Namely, the Las Vegas Review has partnered with Righthaven to sell their copyright interest in articles after the articles in whole or part are attached as hyperlinks to blogs. Righthaven registers the copyrights it purportedly acquires from the Las Vegas Review and then sues the blogs without sending the standard "cease and desist" letter beforehand.…

Continue Reading Blog Hyperlinks to News Stories = Copyright Infringement or Not?

On August 6, 2010 Senator Charles Schumer (D-NY), introduced a bill entitled the Innovative Design Protection and Piracy Prevention Act ("IDPPPA") (S. 3728), which represents a compromise between the American Apparel & Footwear Association ("AAFA") and the Council of Fashion Designers of America ("CFDA") in an effort to afford protection to American designers for new and original fashion designs.[1]…

Continue Reading The Innovative Design Protection and Privacy Prevention Act: Will Design Protection Be In Vogue in Congress?