Month: October 2011

Tiffany’s blue in clash over Louboutin’s red

Tiffany’s, the top-end bangles-retailer, apparently feels blue enough to think out of and about its signature box and how it might be crushed in the trademark clash with Yves Saint Laurent over Christian Louboutin and his red-soled footwear. Yes, of course, this is intellectual property combat of more than passing interest to entertainment law practitioners — not just because their clients cache and adore these upscale baubles but also because the same big-spending crowd increasingly has ambitions to cash in, in the celebrity-named luxe goods markets.So, first, let’s note that Christian Louboutin has appealed his case Louboutin v. Yves Saint Laurent after U.S. District Judge Victor Marrero’s decision denying him an injunction and holding that the plaintiff’s red-sole trademark was likely invalid.  As reported in a previous post, the decision left many stunned given the extensive evidence indicating that the mark had acquired secondary meaning and would cause consumer confusion.  The appeal brief restates many of the arguments originally made for the injunction, but also seeks to find Marrero’s assessment of the law in error. Things got a little more interesting then as Tiffany joined the fray, concerned, of course, about its signature blue trademark. Tiffany’s filed an amicus curiae in the Southern District of New York.  As reported by Women’s Wear Daily, the difference between Tiffany’s blue-  and Louboutin’s red-sole-trademark is that one involves product packaging while the...

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Beyonce, choreographer tangle over dance

Though some have stepped up to copyright their moves and few have tip-toed into courts, with the expected differing results, noted choreographer  Anne Teresa De Keersmaeker appears unfazed by the infrequency of such cases and has decided to tango with pop diva Beyonce. The Belgian artist has sued the American superstar, asserting she plagiarized dance moves from two films, Rosas danst Rosas and Achterland, for the Beyonce Countdown music video. A comparative clip on YouTube (above) shows key sequences from both films and music video to highlight their similarities. As reported by Eriq Gardner for The Hollywood Reporter, Esq., the case presents an interesting opportunity to assess the degree to which choreography has received copyright protection in the United States. The U.S. Copyright Office says choreography can be submitted for registration so long as it is “fixed in a tangible medium of expression from which the work can be performed.”  This includes film or video. Data reported by THR, Esq., was gathered by the Register of Copyrights and shows that, in 2009, 545 of the 424,427 copyright registrations were for “Dramatic Works, Choreography, and Pantomimes.”  This was a 98% decline from a decade ago, underscoring Gardner’s view that Keersmaeker may be setting something of a legal “trend.” It works to the choreographer’s advantage that both dances are fixed in film, making it easier for a judge to potentially  assess...

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Kids’ online privacy protections up for changes

In this guest post, Tiffany Samuel and Kim Jackson — members of the Entertainment Law and Web 2.0 class — describe moves by the Federal Trade Commission to update measures aimed at protecting children and their privacy and identities when they go online:  While the Federal Trade Commission put the Children’s Online Privacy Protection Act in place in 1998 to protect children younger than 13 when they go online, as technologies and their uses evolve at lightening speed and get intertwined with the daily lives of young and old, regulators have given notice that they think it is time to revise existing laws. The FTC says it wants to give parents more help to shield naive youngsters not only from inappropriate materials but also from invasions of their privacy and others’ attempts to profit off their names, locations and identities. With a brutal economy forcing even more families into situations where both parents must work, supervision of children’s online activities, especially in this day of ubiquitous, mobile smart devices and social media every where, tougher oversight of kids’ cyberspace lives might seem sensible, without controversy or opposition. But as the FTC rule proposals wend their way through congressional and other reviews — the agency has set a November deadline for submissions and comments — it’s possible there may be unintended or unpleasant consequences for Hollywood, video game developers and others in...

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High court declines digital downloading case

The Supreme Court recently has denied certiorari in American Society of Composers, Authors and Publishers (ASCAP) v. United States, reinforcing the notion that public performance royalties will not be paid to artists when their music is digitally downloaded from internet companies such as Yahoo!, which did not want to pay the 2.5% royalty rate that ASCAP sought to impose on each song that was downloaded. The justices let stand the New York appeals court ruling that a digital download of a musical work does not fall under the Copyright Act’s definition of a public performance, and, therefore, copyright owners have no right to be compensated. The high court justices effectively agreed with the appeals court when it stated that: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.”000 Theodore Olson, the attorney for ASCAP, contended the appellate ruling improperly narrowed public performances of copyrighted works and places the United States in violation of not only intellectual property treaties but international agreements, as well. The United States, opposing the appeal to the Supreme Court, argued that the appellate court correctly laid out the difference between music that is downloaded and music that is streamed: For the downloads at issue here, the contents of the file are not played during the download.  Rather, after the download is complete, the customer may use...

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High court considers if Congress under treaty can restore copyrights for foreign works

The U.S. Supreme Court has heard arguments over Golan v. Holder (No. 10-545), a key copyright case — discussed in a previous post here — over Congress’s 1994 decision to restore protection to a vast body of foreign works that had already gone into in the public domain (audio included here). This matter stems from the U.S. signing of the Uruguay Round,  an attempt by American officials to align with the nation with international copyright system and bolster intellectual property protection globally. The case has attracted considerable media attention because of the names and works involved, including compositions by Dmitri Shostakovich and Igor Stravinsky,  art by Pablo Picasso and books by HG Wells and movies by Alfred Hitchcock. The academic world also sees a huge stake for itself in Golan, which, advocates have said, could increase costs and curb the availability of materials for study by students and teachers. To recap: Petitioners, as represented by Anthony Falzone of the Stanford Center for Internet and Society argued that Section 514 of the Uruguay treaty violates the copyright clause and the First Amendment (their brief is here).  Solicitor General Donald Verilli contended that Congress had the right to ratify the treaty and help U.S. works receive increased, global copyright protection. (The U.S. brief is here). Scrutinize the transcript of the oral arguments and the questions posed and it appears that the justices...

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