Author: Matt Haddad

In Betty Boop case, defendants prevail. Again.

U.S. District Judge Audrey B. Collins  in Los Angeles has ruled in Fleischer Studios Inc. v. A.V.E.L.A. Inc. that the “Betty Boop” word mark, when used with the character’s cartoon image, is both aesthetically functional and a fair use. She, thus, found no copyright infringement by defendants and granted them summary judgment. Again. This is the latest action in protracted litigation over ownership of the intellectual property of Betty Boop. The plaintiff is related to Max Fleischer, the cartoon character’s creator. While it is undisputed that Fleischer sold all rights to Betty Boop long ago, the family tried to repurchase intellectual property rights in the 1970s. Acting on their belief that they had successfully acquired these, they began licensing the character’s use for merchandise.  A.V.E.L.A. also licenses the Betty Boop character for merchandise, utilizing depictions and the name  from vintage posters that the firm claims are in public domain. The Fleischers sued for copyright and trademark infringement, launching this complicated court battle. Originally, the late U.S. District Judge Florence-Marie Cooper  granted summary judgment to A.V.E.L.A., holding that the Fleischers did not have a valid copyright or trademark in the character.  On appeal, the Ninth Circuit upheld Cooper’s rulings, but based its trademark findings on the aesthetic functionality doctrine, which the District Court did not. So the Fleischers sought a rehearing. The superseding opinion upheld the District Court on the image mark and copyright claims but vacated the...

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A $1.5 million-plus penalty for porn download

U.S. District Judge John Lee in Chicago has granted a default judgment to Flava Works, Inc. (a porn video production company) against Kywan Fisher for $1.5 million plus attorney’s fees and costs, for illegally downloading porn via BitTorrent. This judgment reflects the maximum penalty available under copyright law. Forbes reports this is the largest judgment yet in the “hundreds of thousands” of BitTorrent suits. DieTrollDie predicts that copyright trolls will exploit this case to frighten people into  settling. This all started as a run of the mill mass filing. But the judge severed the defendants, and, unfortunately for Fisher, he was the weakest prey at the edge of the herd. He was a paid member of Flava Works and had agreed not to copy or distribute movies, plus he was accessible and could be served. He ignored the summons and hearing, so the court entered the default judgment and exigent penalties, sending a clear warning to would-be copyright infringers. This case should be distinguished from a suit filed earlier this year, Flava Works Inc. v. Gunter, decided by Seventh Circuit Judges Richard A. Posner, Joel M. Flaum and Diane P. Wood. In that case, Posner reversed the copyright infringement finding by a U.S. District Court in Chicago, holding that the defendant, a proprietor of myVidster, was neither directly liable nor contributorily liable because copyrighted content was not stored on servers and it was not proven that myVidster encouraged...

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In Germany, eine kleine verwirrend gesang

Germany’s Federal Constitutional Court recently ruled that the parents of a teen who had illegally shared more than 1,100 songs on the internet cannot be held responsible and are not required to monitor or restrict their son’s future on-line activities. The court’s ruling diverges from German protocol, which is hard on internet piracy. Legislation in Germany almost always holds those with ISP accounts responsible for activities on their IP address, BitTorrent reports. In 2007, the rights holders to 1,100-plus songs, illegitimately shared on the computer of a 13-year-old, sued his parents, alleging inadequate supervision. A lower court agreed and awarded damages for copyright infringement; that ruling was upheld on appeal. But the federal court overturned the appellate decision, saying the parents had fulfilled their obligations by giving their teen a “basic do’s and don’ts” lecture about his computer, including warnings against sharing copyrighted material on the internet. The high court further ruled it would be necessary to require parents to monitor or restrict their child’s activity only if there were “reasonable grounds” that the child would engage in illegal on-line activity. And that wasn’t the case here. While this head-scratching case possibly offers a new path for defendants accused of copyright infringement, let’s see if it becomes a precedent affecting...

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Hearings set in L.A. on copyright proposal

The Copyright Office will conduct public hearings in Los Angeles on Monday and Tuesday to explore ways to handle copyright claims with “relatively small” economic value. Congress asked the office to determine how the  system now creates barriers for copyright owners seeking relief from infringement and to recommend improvement. A proposal under consideration calls for a small copyright claims tribunal, akin to small claims court, where cases would be heard by three presiding judges. Carolyn E. Wright, a photo attorney with offices in Nevada and Georgia, will serve on the Los Angeles panel and is seeking online  views about the possible tribunal. The hearings will be in Room 1314 at the UCLA School of Law, 405 Hilgard Ave., Los Angeles, 90095, on Monday from 9:30 a.m. to 5:30 p.m. and on Tuesday from 9:30 a.m. to 3:30 p.m. More information: https://www.copyright.gov/docs/smallclaims/. Among the parties who already have weighed in before Congress on whether the current system proves daunting for costs and other reasons: representatives for groups of authors, songwriters and...

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Double-bogey email, no copyright ‘Match’

Let’s tee off on whether an email binds: Justice Madeleine Flier of the California Appeals Court has affirmed the finding of Superior Court Judge Richard A. Stone in summary judgment, regarding MVP Productions Inc., a film and television production company, and a copyright transfer of the rights to Mark Frost’s book, The Match. MVP had sent an email to Frost’s attorney, Alan Wertheimer, that proposed certain terms and stated, “Let me know if this is okay and we’ll send paperwork…” Wertheimer responded, “done…thanks! Werth.” So was that a binding agreement?No, said Judge Stone — and Justice Flier concurred. Both courts’ rulings were predicated on Title 17 Section 204(a)of the Copyright Act which states “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” There was no evidence that Wertheimer was Frost’s duly authorized agent, so there was no triable issue of material fact. MVP argued that Wertheimer had ostensible if not actual authority; under Section 204, however, ostensible authority is insufficient, as only a writing signed by the copyright holder or his duly authorized agent is acceptable. Wertheimer did not have express authorization from Frost, so he was unable to transfer the copyright. The...

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