January 14, 2011
Mark Levin Objects
According to The Hollywood Reporter, talk show host Mark Levin is angry about MSNBC's Chris Matthews' remarks concerning whether Mr. Levin might have influenced the tragedy in Tucson last week. Mr. Levin says he plans to "wait" for an allegation specific enough to sue over and then "I'm going to drag your ass into federal court." More here from THR. Mr. Levin is an attorney, head of the Landmark Legal Foundation.
This paper addresses the topic of “libel tourism,” a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. A number of commentators have discussed libel tourism at length, and this paper does not provide a treatise on the topic. Rather, it reviews recent reactions from legislators, courts, and commentators, and then offer some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the essay concludes that U.S. attempts to address the issue of libel tourism have been quite broad, and suggests a more cautious approach that would better contribute to maintaining America’s role as a leader in the evolving world of tort law.
Download the Article from SSRN at the link.
January 13, 2011
Guardian Wins Defamation Appeal In Iraqi Court
The Guardian newspaper has won its appeal against an Iraqi lower court's decision that it defamed Iraqi Prime Minister Nouri al-Maliki and the Iraqi National Intelligence Serice in a 2009 article. The lower court had ruled the article libelous and imposed damages but the appellate court overturned the verdict. More here.
January 12, 2011
AP and Shepard Fairey Settle Lawsuit Over Use of Image
The Associated Press and Shepard Fairey have come to an agreement concerning Mr. Fairey's use of an AP copyrighted image in his HOPE poster. In an announcement, the parties noted:
In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.
“The Associated Press is pleased to have reached resolution of its lawsuit with Mr. Fairey,” said Tom Curley, president and CEO. “AP will continue to celebrate the outstanding work of its award-winning photographers and use revenue from the licensing of those photos to support its mission as the essential provider of news and photography from around the world. The AP will continue to vigilantly protect its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use.”
“I am pleased to have resolved the dispute with the Associated Press,” said Mr. Fairey. “I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images. I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP’s talented photographers.”
However, the release also says, "The AP's copyright infringement lawsuit against Obey Clothing, the marketer of apparel with the Hope image, remains ongoing."
Former BBC On-Air Host Wins Age Discrimination Suit Against Network
Former British presenter (on air host) Miriam O'Reilly has won her age discrimination case against the BBC for axing her from the show Countryfile in 2009. The network, which terminated Ms. O'Reilly along with three other women journalists, was accused of ageism and sexism because the four were all over the age of 40. After listening to and examining evidence of comments made by BBC decision makers responsible for Countryfile and other BBC shows, the tribunal found that the BBC decision makers responsible for the program had engaged in age discrimination, though not sex discrimination. Read the ruling here.
January 11, 2011
Top Ten Patent, Trademark, Copyright and Trade Secret Cases of 2010
This piece discusses notable intellectual property decisions in 2010 in the United States. Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was at issue in each area, such as whether human genes and business methods are patentable, whether a product idea may be a trade secret, and where the constitutional limits on copyright legislation lie. Secondary liability remains widely litigated, as rights holders seek both deep pocket defendants and a means to cut off individual infringers. The courts applied slightly different standards as to the state of mind required for secondary liability. Many of the cases involved disputes between hiring and hired parties, over the ownership of intellectual property rights:professors and universities contesting rights to federally funded inventions; an artist seeking to prevent a museum from showing an unfinished commissioned work; a party that commissioned a sculpture, but without obtaining the copyright, relying on fair use to exploit derivative works; entrepreneurs disputing how to apply the work-made-for-hire doctrine in the informal context of a start-up business; and a company hiring a competitor’s employees to reverse engineer its trade secrets. A number of cases concerned the relationship between intangible rights and physical property: liability for false patent marking, attempts to limit a biotech patent to the sample submitted to show possession of the invention, seeking trademark protection for the shape of a round beach towel, and sales of second hand software on eBay.
"The Kennedys" Still Looking For a Network
Both Starz and FX have refused to consider running the "Kennedys" miniseries, now that The History Channel has passed on the series, according to The Hollywood Reporter. THR also ran an article in Sunday's issue reporting that members of the Kennedy family pressured the A&E network, which broadcasts The History Channel, to drop the idea of airing the drama.
January 10, 2011
Copyrighting Ditigal Images of Real People
This Article addresses a few of the issues that confront digital artists and modeling companies in the context of copyright law’s requirements of originality and independent creation, and provides a comparative look at potential protection for these types of digital models under differing definitions of originality. In an age when animators deal with pixels as well as paint brushes, the laws of the United States potentially offer digital artists less protection in this context than do the laws of other countries, such as the United Kingdom and Australia. Specifically, the requirement of originality after Feist and the lack of sui generis database protection in the United States provide less protection for digital visual effects artists engaged in modeling reality than do the laws of these other jurisdictions. This Article examines some examples of recent advancements in digital imaging technology; specifically, the ability to create digital clones of preexisting things, such as living or deceased personalities and other, non-human, objects. The Article then provides a comparative analysis of copyright’s requirement of originality in the United States, United Kingdom, and Australia, followed by a brief look at sui generis protection under the European Union’s recent directive on the legal protection of databases.
Chinese Copyright Law and Piracy
While the Internet has presented unprecedented potential for the profitability of recorded music, it has also created many challenges for a reactive copyright system. Opportunistic entrepreneurs have developed lucrative distribution models that circumvent copyright protection. Moreover, these e-commerce models, which embrace the Confucian ideal of sharing, have normalized a culture of music piracy in China. This normalization has catalyzed a culturally inspired copyright dispute between the United States and China.
This article explores the history of Chinese copyright law as it has been shaped by Confucian political culture, and discusses the socioeconomic factors hindering the effective enforcement of China’s modern copyright regime. Additionally, it reveals that the ex-post legal strategy utilized to combat music piracy in China has compounded the enforcement issues due to its insensitivity to such cultural norms.
Ultimately, in reconsidering the efficacy of the recording industry’s ex-post legal strategy, the article proposes an ex-ante anthropological approach that embraces and interacts with Chinese culture. Furthermore, it advances a grassroots educational program called Thru the Music that attempts to promote copyright consciousness through Chinese hip-hop culture. By tailoring this educational campaign to suit the current creating and consuming culture of Chinese hip-hop, it allows the music to speak for itself, redefining the norms of Chinese music consumption.
Download the article from SSRN at the link.
Freedom of Speech and Support for Terrorism
In the recent case of Holder v. Humanitarian Law Project, the Supreme court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech.
This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.
Download the article from SSRN at the link.
Fed Seizure of Domain Names
Entertainment Law Reporter Blog points to an interesting post from Terry Hart's Copyhype Blog discussing the feds' seizure of domain names owned by folks alleged to be engaged in counterfeiting and copyright infringement.
FCC Releases First Report On Wireless Trends
From the FCC
The Federal Communications Commission today released the first in a series
of reports by the Office of Engineering & Technology Laboratory which looked at trends in
cutting-edge wireless devices.
The report showed the following:
· The number of wireless transmitters authorized by the FCC in 2010 was nearly
12,000, an increase of almost four times the amount from a decade ago.
· A 700% increase since 2008 in the number of devices with three or more
transmitters, up from 7% of total devices in 2008 to more than 50% today.
Noting that new devices are becoming more useful and technologically advanced, the
report found that the number of new increasingly sophisticated devices entering the marketplace
with multiple transmitters, enabling access to 4G networks, Bluetooth, Wi-Fi and other types of
connections, will continue to present more options for consumers.
See the entire report here.