Month: March 2016

Court orders rapper to stop rolling with luxe TM

  Robert D. Davis, a rapper who on stage partly went by the moniker Rizzy and more, won’t be rolling any longer with references to a luxe automobile brand. That’s because a federal judge in New Jersey has ruled in favor of Rolls-Royce Motor Cars Ltd in a trademark infringement and dilution action against Davis, aka “Rolls Royce Rizzy.” The court barred Davis from using “Rolls Royce” as his stage monkier and from employing the company’s registered “RR” logo on his website and on t-shirts. How did the rapper get run over with this decision? Default judgment Plaintiff Rolls filed an unopposed motion for default judgment, partially granted by the federal court. U.S. District Judge Kevin McNulty entered a default judgment on the claim of trademark dilution and unjust enrichment. The court found that Rolls had a clearly established, distinctive mark that is well known. Meantime, the judge said that Davis had begun using the mark after it was famous, and the rapper blurred and tarnished it. How? The judge pointed to, as plaintiffs complained, “an advertisement for an event ‘hosted by Rolls Royce Rizzy,’ entitled ‘Call of Booty,’ which features a scantily-clad woman and advertises a ‘Booty Shaking Contest.’” The judge also frowned on the mark’s links to Davis’ “hit singles” with profane titles. Based on that information, the court found that plaintiffs had met the final element to...

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Dancing baby spins again, now for more fair use

Oh, that baby never seems to stop dancing, does he? The U.S. Ninth Circuit Court of Appeals, en banc, has released an amended opinion and dissent in the “Dancing Baby” case aka Lenz v. Universal Music Corp, which this blog has posted plenty about previously. For a quick recap, this case involves plaintiff Stephanie Lenz, who nine years ago posted a 29-second video on youtube.com of her then infant son dancing to Prince’s Let’s Go Crazy. Universal, which owns the song’s copyright, then used Digital Millennium Copyright Act’s take-down procedures to seek video’s removal.  The two parties have gone at in court ever since, resulting last year in the appellate opinion finding that a rights’ holder must make “a good faith inquiry” as to whether content would qualify under the Copyright Act’s fair use exception before requesting a take-down. In its original opinion, the appellate judges included a limit that the “consideration of fair use need not be searching or intensive,” and that “implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirement’s to somehow consider fair use.” The judges sought to explain some of the process that rights holder must perform before seeking a take-own, as well as limiting the scope of their required inquiries. But in amending their opinion, the appellate judges have removed both...

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Legal ink’s not dry on copyright for tattoos

For centuries, the human race has shown an affinity for body art, often capturing works of art onto the human “canvas.” From tribesmen to notable celebrities today, tattoos have persisted in culture as a personal identifier. Skin art has, of course, become an obsession of contemporary pro athletes in the NFL, boxing, UFC, soccer, and basketball. As they have taken even stronger and wider hold in pop culture, tattoos have become a focus of entertainment and sports industry insiders and legal departments needing to clear rights for creative projects. But can tats get copyright protection? Unfortunately, for Entertainment lawyers who are asked to weigh in on this question, answers are scant in this area of law and the merits of issue appear yet unresolved.  As one law firm has posted on its blog, celebrities and public figures may have rights of publicity, which give them certain sway over, “commercial exploitation of their images and likenesses.” But “when tattoos enter the picture, the issue is complicated; currently there is nothing in the U.S. Copyright law that bars tattoo artists from the same right to control and benefit from their art.” The popular press has explored concerns for companies about jocks, brands, copyright, and tats, suggesting loops and hoops all concerned might need to traverse. The issue has prompted at least one detailed law review article. A case involving boxer Mike Tyson that many thought might...

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Justices decline Apple’s appeal on e-books

Apple is on the hook now to the tune of $400 million to consumers after the U.S. Supreme Court declined to take up an appeal of an adverse decision against the tech company by the U.S. Court of Appeals for the Second Circuit. The appellate court upheld a lower court ruling that Apple conspired to fix the prices of some e-books in in violation of the Sherman Antitrust Act. The justices did not comment in rejecting Apple’s bid for certiorari. The Justice Department sued Apple in 2012, asserting the Cupertino tech giant led a horizontal conspiracy among publishers, who were frustrated with Amazon’s low prices, to raise e-book prices. The parties sought to raise prices above Amazon’s standard $9.99. To do this, Apple introduced a  “agency pricing,” where publishers set the e-book price, and then Apple would get a percentage of each sale. The publishers settled before trial, but Apple held out. The 2013 trial took a month. The most damaging evidence was an email from Steve Jobs, then CEO and Apple co-founder, stating: “I can live with this, as long as they move Amazon to the agent model too for new releases for the first year. If they don’t, I’m not sure we can be competitive.” The appellate court upheld the lower court in a 2-1 decision in 2015. Apple had argued that its entry into e-publishing created “long-term competition” and...

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Barbs over ‘safe’ arrows raise legal quivers

The movie studios, television networks, video game makers, and big-time music businesses on both coasts may wish to take note of a curious case playing out in the nation’s heartland. It’s raising some novel issues about how small defendants soon may fund and sustain themselves in lawsuits with powerful plaintiffs over a range of IP disputes, including contested copyrights, trademarks, and patents. The defendant in this peculiar matter has taken to gofundme.com, a popular online crowdfuding source, to raise money for his case. Is this a new way to level the playing field between corporate IP Goliaths and David defendants? Could this create a new way for IP suits to make it to trial rather than settling out? Or could crowdfunding become a way for attorney’s to take on challenging cases–while ensuring they’ll get paid? And what are the ethics of fund-raising for lawsuits? The controversies have gotten sufficiently acute that the Electronic Frontier Foundation, which calls itself the “leading nonprofit organization defending civil liberties in the digital world,” has asked to enter the case, particularly over questions it may raise about litigants’ First Amendment rights. What case could parties to take arms in such noisy fashion? This one, no kidding, involves safe arrows and fans who like to play fantasy games with them. So come, shall we, upon a quest to discover this new source of magical power? Where the...

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