Month: January 2013

A key ruling on who owns pics on Twitter

As lawyers know all too well, it pays to read the really fine print: The terms of service for Twitter, it turns out, have played a central role in a notable decision by a U.S. District Court in New York involving the wire service Agence France Presse  and the Washington Post. They were found to have infringed the copyright of photojournalist Daniel Morel.  Partial summary judgment was granted in favor of Morel after the court found that Twitter’s terms do not grant a third-party license for commercial use of images posted on the service, thereby making AFP and the Post liable for distributing and publishing Morel’s photographs. While in Haiti during the 2010 earthquake, Morel uploaded 13 pictures he took of the devastating aftermath to a Twitter account.  AFP obtained the photos, re-posted by another user and the news service transmitted them on its wire and with partner Getty Images. The Post published four photos on its website, obtained from Getty. After AFP filed a complaint against Morel for commercial defamation, seeking a declaration that the news service had not infringed his copyright. the photographer filed a counterclaim against AFP, Getty and the Post. He accused them of willful infringement of his copyright and violating the Digital Millennium Copyright Act,  making AFP and Getty secondarily liable for the infringement of others who had posted the photos. U.S. District Judge...

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Court erases ‘Penman’ copyright claim

Take two stick-figure cartoon characters and stick them side by side. Are there sufficient similarities between them to launch a copyright infringement case? Gary Blehm, a commercial artist who created the “Penmen” characters, thought so: But he lost his copyright infringement suit against Albert and John Jacobs, creators of the T-shirt company ‘Life is Good.’ The Jacob brothers created a cartoon character called “Jake” to accompany their slogan “Life is Good” for their T-shirt company in the 1990s.  Blehm claimed that “Jake” infringed on his character “Penman,” which he created in the 1980s for  posters. Penman later became part of a T-Shirt line, comic strip and book.  Although Penmen products were sold nationally, the Jacob Brothers claim they never heard of the cartoon character before the suit. A U.S. District Court in Colorado, in an decision affirmed by an appellate court, granted summary judgment to the Jacob brothers finding there was no question of substantial similarities between the Jake and Penman images for a jury to consider. A copyright infringement claim requires (1) ownership of a valid copyright and (2) the copying of protectable elements of the work that are original.  The second element in question turns on whether there is a substantial similarity between the alleged infringing work and the legally protected elements of the copyrighted work to constitute copying.  The court does this by separating the ideas...

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Court settles a discord among Calloway heirs

Nineteen years after the death of  Cab Calloway, a U.S. District Court in New York has handed down the latest ruling in the on-going legal battles among family members of the legendary jazz singer and band leader.  This most case recent arises out of a trademark dispute over the use of the mark “Cab Calloway.” The plaintiff, Creative Arts by Calloway LLC — Calloway’s widow, daughters and son-in-law — filed an “intent-to-use” application with the Patent and Trademark Office, seeking  to register the mark “Cab Calloway.” Christopher Brooks, Calloway’s eldest grandson and a musician, opposed the application based on his prior use of “The Cab Calloway Orchestra” name for a tribute band to his grandfather. The court granted summary judgment for Brooks, finding that Creative Artists lacked a business “on going and existing” as required by the Lanham Act, which would allow the assignment of the application between Calloway’s widow and Creative Arts, thereby voiding it.  The Lanham Act protects the owner of a federally registered mark against the use of similar marks, if such use is likely to result in consumer confusion or if the dilution of a famous mark is likely to occur.  A transfer of an application is permitted  as long as the assignment is accompanied with an amendment that is filed verifying the statement of use. But an application can be assigned without use, if it...

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7 years’ inaction: an easy mark for Ludacris?

First, you need to know that Demitri Brown and Donna Evans-Brown used to have a trademark for “Disturb the Peace,” which they claim to have been using since 1988, but their federal trademark was cancelled in 2004. Second, you need to know that Christoper Bridges, nee Ludacris, has several trademark registrations that incorporate “Disturbing Tha Peace,” in use continuously since 2000 when he founded “Disturbing Tha Peace Records.” Third, you need to know how a trademark gets cancelled: don’t monitor it!  In 2003, Ludacris petitioned the Trademark Trial and Appeals Board to cancel the Browns’ trademark claiming they weren’t using it;  a default judgment was entered in 2004 because the Browns never responded. In 2011, the Browns’ petition to reinstate their mark was denied because the appeals board said seven years was too long a time to contest the decision, given that Ludacris had registered multiple marks and spent more than $1 million dollars “marketing, advertising, and promoting” his trademarks. Fourth, you have probably guessed that the Browns have filed a federal copyright infringement lawsuit against Ludacris. It’s in a Texas federal court with U.S. District Judge Jorge A. Solis presiding. Lastly, while awaiting action in that suit, judicial notice to Michael Cohen for highlighting the importance of monitoring registrations when a notice is sent by the appeals...

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The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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