NYLJ 6-8-07
4. INFRINGEMENT SUIT OVER LAWYER’S ADVERTISING CARTOON PROCEEDS
4. You may have seen it a thousand times and leafing through the Yellow Pages it would seem as innocuous as all those subway ads for Fitzpatrick & Fitzgerald or Fitzwilly or Fitzwhatever, you know?—the one with the fightin’ leprechaun? Or that guy with the 1970’s mustache? It probably won’t work for the blind lady or scales: too generic.
But the doodle of a guy wrapped in bandages in a hospital traction bed has been Newmark & Newmark’s trade advert since 1988, and registered since 1990. Howeer, the Berne Convention Implementation Act, which eased copyright notice requirements, was also 1988, which meant that their usage/image pre-dated it, briefly.
And that was where Ronai & Ronai, another personal injury firm felt they had enough wiggle room to put out their own version of the hapless patient. As the image had been published without copyright notice, it appears possible for them to get by without trademark infringement. An N&N are based in Rockland and R&R in White Plains, it ended up in the lap of SDNY, where the R&R SJ was summarily denied. N&N’s 1990 registration and steps taken in the intervening years cured the earlier distribution. SDNY approved as it was within the allowance of pre-Berne, that steps were taken within 5 years of initial publication. And as he had the discretion to reduce damages to $200 if he found the infringement were unwitting, it was his urging that the parties all settle as amicably as possible.
After all, they wouldn’t want to injure each other’s reputation, would they?
Showing posts with label Copyright infringement. Show all posts
Showing posts with label Copyright infringement. Show all posts
Tuesday, April 27, 2010
Wednesday, April 21, 2010
CIRCUIT ORDERS CLOSER LOOK AT FASHION COPYRIGHT CASE
NYLJ 6-8-07
3. CIRCUIT ORDERS CLOSER LOOK AT FASHION COPYRIGHT CASE
3. The First Amendment once again clashes with Intellectual Property law, entering through the nebulous portals of Internet “Fair Use” provisions. However, it isn’t the law that is in dispute as much as everybody’s lack of form-filling.
The US-based website that published pictures of a French fashion show did so in full belief that a public event holds no particular rights to their images, especially when the suit against them included an unfair competition charge as well. While there is no mention made of Process of Service outside of the Hague Convention on the Service of Extra-judicial Documents in Civil or Commercial Matters, one assumes it must be good to have passed through to the present state of affair. That, in 1/01, the combined suit was filed against the website, and, having failed to respond to the complaint, the defendant’s had a default judgment found against them on 5/2/01. is four months too long or too short was never mentioned either, but it certainly was enough for the Court of Appeals for the 2nd Circuit to hang their first objection upon. “They had their opportunity to respond, but chose not to at their peril.”
When 12/04 rolled around and the Frenchies finally got down to filing in SDNY, a consolidation of the actions ended up in the usual attachment request. Now the Webbers responded fast and furious: motion to dismiss, motion for SJ and to vacate—all in one. It was the Fed judge who gave them their early victory, ruling the 1st leave no doubt about the issue of the plaintiff’s control of the way information is disseminated in the mass media, in regards public events. That, along with “fair use” rule, seemed to be all she wrote.
And that was the problem for the CoA; the Fed justice just didn’t write enough. Or “did not conduct the full analysis necessary…because the record before us [CoA] does not permit us to determine whether enforcement of the foreign judgments is repugnant to the public policy of New York.” Which may sound like: “Ugh! French justice is as ripe as their cheese! Icky!” But it was Ackerman v. Levine, 788 F.2d 830, 840 (2nd Cir. 1986), which was cited “by defaulting in a foreign adjudication, a defendant ensures that a judgment will be entered against it and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment, and, while the 1st Amendment does provide categorical protection, Intellectual Property laws co-exist with it… The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey the IP laws.”
In vacating the judgment and remanding it back to the Fed judge, it was, at very least, to do a more thorough analysis of whether fair use was in play and establish a clearer record as to “the manner of protection afforded plaintiff’s fashion shows by French law, as well as infringement.”
So—go upstairs and do your homework, SDNY!
3. CIRCUIT ORDERS CLOSER LOOK AT FASHION COPYRIGHT CASE
3. The First Amendment once again clashes with Intellectual Property law, entering through the nebulous portals of Internet “Fair Use” provisions. However, it isn’t the law that is in dispute as much as everybody’s lack of form-filling.
The US-based website that published pictures of a French fashion show did so in full belief that a public event holds no particular rights to their images, especially when the suit against them included an unfair competition charge as well. While there is no mention made of Process of Service outside of the Hague Convention on the Service of Extra-judicial Documents in Civil or Commercial Matters, one assumes it must be good to have passed through to the present state of affair. That, in 1/01, the combined suit was filed against the website, and, having failed to respond to the complaint, the defendant’s had a default judgment found against them on 5/2/01. is four months too long or too short was never mentioned either, but it certainly was enough for the Court of Appeals for the 2nd Circuit to hang their first objection upon. “They had their opportunity to respond, but chose not to at their peril.”
When 12/04 rolled around and the Frenchies finally got down to filing in SDNY, a consolidation of the actions ended up in the usual attachment request. Now the Webbers responded fast and furious: motion to dismiss, motion for SJ and to vacate—all in one. It was the Fed judge who gave them their early victory, ruling the 1st leave no doubt about the issue of the plaintiff’s control of the way information is disseminated in the mass media, in regards public events. That, along with “fair use” rule, seemed to be all she wrote.
And that was the problem for the CoA; the Fed justice just didn’t write enough. Or “did not conduct the full analysis necessary…because the record before us [CoA] does not permit us to determine whether enforcement of the foreign judgments is repugnant to the public policy of New York.” Which may sound like: “Ugh! French justice is as ripe as their cheese! Icky!” But it was Ackerman v. Levine, 788 F.2d 830, 840 (2nd Cir. 1986), which was cited “by defaulting in a foreign adjudication, a defendant ensures that a judgment will be entered against it and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment, and, while the 1st Amendment does provide categorical protection, Intellectual Property laws co-exist with it… The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey the IP laws.”
In vacating the judgment and remanding it back to the Fed judge, it was, at very least, to do a more thorough analysis of whether fair use was in play and establish a clearer record as to “the manner of protection afforded plaintiff’s fashion shows by French law, as well as infringement.”
So—go upstairs and do your homework, SDNY!
Monday, February 22, 2010
CLAIMS SPLIT BETWEEN US/UK COURTS
NYLJ 5-25-07
1. CLAIMS SPLIT BETWEEN US/UK COURTS
1. It’s an old story, dating back to the dawn of popular music, you could say. The first time a Tin Pan Alley tunesmith was asked to seel all the rights to his song for a month’s rent, it was with the knowledge, even as he scribbles his name on the page, that somebody was getting the mother of all bargains. Nary a con as the creator always knows that their work was of immense value, if only to them. That would be criminal. But a swindle? That isn’t quite right. If the scienter of mens rea proves the aforesaid, no matter how much the artist claims it was under duress and desperation, you won’t get any coercion charge to stick. Outside of being underage, drunk, or with a gun to your head (cf. the offer you can’t refuse).
So take your average ghetto youth from da Bronx, making the choice between the fast and dangerous life of a street thug/crack dealer and that and a teller of those tales, a hardcore gangsta rapper (and DJ, better to own the whole shop than share the profits, a true capitalist at heart). The contract is with a company called BBE—Barely Break Even, which should tell you a lot already. But that’s part of the ethic, no?
The plaintiff, not to be further coy, is Pete Rock, a “name” in the biz, nowhere in the Snoop/Jay-Z/50cent league, but respectable enough for a rep. in 2002, he signed on the dotted line to produce “no less than 10 newly recorded and previously unreleased tracks of no less than 60 minutes of master recordings.” That the minimum was not compared with a maximum was not of any significance at the time and it would be these master recordings which would become “Soul Survivor II”.
So it’s not “Get Rich Or Die Trying”, but neither is it Vanilla Ice. And decent sales are enough to have BBE come back to him (along with their new partner, Studio, a distributor) and seek permission to release all the rest of his recorded material. Now, as to whether the G is being sincere in saying they ain’t ready for air time, or is just cagy enough to want a new deal, it matters little. You’d think that the world’s shortest sentence would suffice. That they went ahead and dropped a 2nd plate of 15 tracks from those sessions, should have been enough of a breach of contract to put a chill on them, like a preliminary injunction at least.
Except our G was from Da Bronx, remember?
It is so standard that almost no one notice the Forum Selection clause for the ejudication of disputes, but, seeing as how BBE was a London-based posse, they chose the home turf avantage. So when it comes down to his claim of being “lord and master” over where he sues the defendants, the US Court of Appeals suggests that the rapper’s ego is “like an inflated balloon,” and may “suffer a considerable loss of altitude’—and attitude—when it comes down to earth where the forum is. “The contract clause is mandatory, not permissive,” was the SDNY verdict that brought it up to the C of A. Which should be the only bad news in this: if it sounds in Breach of Contract, the iron-clad ruling on the rest should only re-enforce the other provisions. That his suit also included direct and contributory copyright infringement and alternative state law claims for unjust enrichment and unfair competition was tossed across the pond. Because…yeah, there was nothing in the original paper that said anything about “Soul Survivor III”.
It is, then, sort of weird that the rapper’s mouthpiece would say, due to the expense (huh?) and difficulty of subpoena-ing witnesses (double that huh?), it was unlikely they would initiate the breach suit in England. Which all is a classic case of not only READ THE FINE PRINT, but EVERYTHING ELSE TOO!
1. CLAIMS SPLIT BETWEEN US/UK COURTS
1. It’s an old story, dating back to the dawn of popular music, you could say. The first time a Tin Pan Alley tunesmith was asked to seel all the rights to his song for a month’s rent, it was with the knowledge, even as he scribbles his name on the page, that somebody was getting the mother of all bargains. Nary a con as the creator always knows that their work was of immense value, if only to them. That would be criminal. But a swindle? That isn’t quite right. If the scienter of mens rea proves the aforesaid, no matter how much the artist claims it was under duress and desperation, you won’t get any coercion charge to stick. Outside of being underage, drunk, or with a gun to your head (cf. the offer you can’t refuse).
So take your average ghetto youth from da Bronx, making the choice between the fast and dangerous life of a street thug/crack dealer and that and a teller of those tales, a hardcore gangsta rapper (and DJ, better to own the whole shop than share the profits, a true capitalist at heart). The contract is with a company called BBE—Barely Break Even, which should tell you a lot already. But that’s part of the ethic, no?
The plaintiff, not to be further coy, is Pete Rock, a “name” in the biz, nowhere in the Snoop/Jay-Z/50cent league, but respectable enough for a rep. in 2002, he signed on the dotted line to produce “no less than 10 newly recorded and previously unreleased tracks of no less than 60 minutes of master recordings.” That the minimum was not compared with a maximum was not of any significance at the time and it would be these master recordings which would become “Soul Survivor II”.
So it’s not “Get Rich Or Die Trying”, but neither is it Vanilla Ice. And decent sales are enough to have BBE come back to him (along with their new partner, Studio, a distributor) and seek permission to release all the rest of his recorded material. Now, as to whether the G is being sincere in saying they ain’t ready for air time, or is just cagy enough to want a new deal, it matters little. You’d think that the world’s shortest sentence would suffice. That they went ahead and dropped a 2nd plate of 15 tracks from those sessions, should have been enough of a breach of contract to put a chill on them, like a preliminary injunction at least.
Except our G was from Da Bronx, remember?
It is so standard that almost no one notice the Forum Selection clause for the ejudication of disputes, but, seeing as how BBE was a London-based posse, they chose the home turf avantage. So when it comes down to his claim of being “lord and master” over where he sues the defendants, the US Court of Appeals suggests that the rapper’s ego is “like an inflated balloon,” and may “suffer a considerable loss of altitude’—and attitude—when it comes down to earth where the forum is. “The contract clause is mandatory, not permissive,” was the SDNY verdict that brought it up to the C of A. Which should be the only bad news in this: if it sounds in Breach of Contract, the iron-clad ruling on the rest should only re-enforce the other provisions. That his suit also included direct and contributory copyright infringement and alternative state law claims for unjust enrichment and unfair competition was tossed across the pond. Because…yeah, there was nothing in the original paper that said anything about “Soul Survivor III”.
It is, then, sort of weird that the rapper’s mouthpiece would say, due to the expense (huh?) and difficulty of subpoena-ing witnesses (double that huh?), it was unlikely they would initiate the breach suit in England. Which all is a classic case of not only READ THE FINE PRINT, but EVERYTHING ELSE TOO!
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