Mestaz Law Newsletter – March 2023

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Welcome to our latest newsletter!

In this edition, we take a fascinating look at both current copyright cases in Arizona and how copyright law came to be, as well as self awareness as a trial lawyer. When was the first copyright law enacted? What is your guess for the first work to be submitted for copyright protection? Did Diaz v. Congressman Schweikert come to a conclusion? And what about the case involving Andy Warhol? How do you think the modern cases we introduced you to have resolved? What was the routine action that led to more self awareness for Dan Mestaz? And how was it meaningful for his future work? Read on to find out!


A Litigator’s Lessons in Self Awareness

By Dan Mestaz
a drinking mug in the sunlight

About twenty years ago, I made partner at a large blue-chip law firm. I thought I was a pretty big deal… larger salary, fancy office, the “partner” business card. An early project was to lead a group of associates on a document review for an important client who was under federal investigation. We met at the client’s corporate headquarters. I got some coffee, gathered the associates into a conference room, and explained the finer points of document review and attorney-client privilege. I spoke… they listened… I was such a boss! When I finished, I asked if there were any questions. A hand shot up. “Yes, Alexis?” I asked. Looking me dead in the eye, she asked, “Will you please stop slurping your coffee?” Laughter filled the room.

That was a great lesson in self-awareness, because, though embarrassing, it was a safe space without real consequences. The lesson, of course, is the gap between how you perceive yourself and how you actually present to the world. That matters A LOT in litigation and trial work. Sometimes it is surface level, physical stuff – like if you are explaining the finer points of law or evidence to a judge or jury but they are distracted because you are talking too fast, have spinach in your teeth, or bite your fingernails. Sometimes, however, it is deeper and more serious, because it makes the listener – judge, jury, or witness – question your authenticity.

I see the gap between self-perception and self-reality as a good measure of authenticity. In other words, in the parlance of our time, that gap shows how “real” you are. There was a gap between my belief that I was effectively helping associates with a project and my inflated self-regard as a big shot partner. My associate deflated my puffed-up ego with a clever remark. Had I been earnest and humble, my coffee slurping might have been forgiven, but when I put on airs I got skewered, and deservedly so.

Self-awareness is critical for any litigator, trial lawyer, or anyone else whose livelihood turns on the evaluation of strangers. Juries are really good at sniffing out phonies. Successful trial lawyers come off as real and authentic… as someone with integrity.

Mind Your actions

Nearly everyone, if asked about their values, will spit out the lofty ones: Kindness… Family relationships… Ethics… God… Honesty… Hard work… Whatever. Nobody says lying, cheating, or laziness. That’s fine as far as it goes. But without more, one’s values are just words and ideas.

The bigger question is whether your actions match your values. As one of my teachers said, “the only things you own are your actions”. Many construe that to mean one “should” take responsibility for the impact that your actions have on the world, but that is not quite right. It is not a “should” issue. Rather, the truth is that you own your actions whether you like it or not. You know what you do. Your actions follow you around. If I do not properly prepare a client for testimony, that will follow me to their deposition or trial. If I do not spend time with my children, they will not know me as well as I like to think they do. So when someone says to “own it,” what it really means is: accept the reality of your choice.

As HH Dalai Lama said, “Happiness is not something ready-made. It comes from your own actions”. Lofty values do not make you happy. It is the actions that are consistent with those values that make you happy. And that means that to be happy, you need to be aware of the gaps between your values and your actions. Happiness, you might say, is inversely proportional to the gap between one’s values and actions.

The Awareness of habits

Everyone has habits – good, bad, or in-between. It is how we navigate the world. I used to drink wine with dinner most nights, but it impacted my sleep. So over the years, I dialed it down. That is not a criticism of anyone’s drinking habits. Everyone is different. I am sure some people drink wine with dinner and are bright and chipper the next day. I used to be one of them. That is no longer me though, as it impacted my productivity, which required me to spend more time at work, and that in turn impacted my relationship with my children. So even though I had a perfectly defensible drinking habit in a vacuum – wine with dinner is pretty tame, right?—I do not live in a vacuum, and that habit interfered with things I valued more, namely, family relationships and stellar client service.

The point is that sometimes we do things simply because that is how we have done them for a long time. Law firms are notorious for this. There is a rote way that some firms work cases, starting with an associate who does written discovery and research, until just before trial, when the experienced partner picks up the file to try the case. That is a bad model because an opposing counsel who has been working the case since day one would have the upper hand.

Realness and authenticity require effort and self-examination, particularly of one’s habits. Are the things I do on a day-to-day basis, often without really thinking about it very much, really in line with what I claim to value? The wonderful thing is that, if you really ask yourself these questions, you almost can’t help but make better choices. You gravitate there. Living consciously and intentionally, and practicing self-awareness, makes for better litigators and happier humans.

Authenticity and trial work

Litigators and trial lawyers make hay of the gaps between lofty values and real life actions. A tried and true cross-examination technique is to let the adverse witness build himself up with statements like “I’m a great father” or “I’m a careful executive” only to have them torn down when inconsistent previous actions are revealed. “So were you a great father when you yelled at your child in front of her friends and teachers?” “Were you a careful executive when you didn’t read the $10 million contract?”

The very best trial lawyers do it well, sure, but they also do it from a place of authenticity and realness. They exemplify what they have shown their opponent to lack. They inhabit truth and integrity. And their resulting happiness is infectious.

Joe Jamail, for example, once represented the widow of a drunk driver who crashed into a tree. He successfully sued the city for planting the tree in the wrong place. To paraphrase his voir dire (where you get to ask questions of potential jurors to weed out those who cannot be fair and impartial), he asked the jurors if anyone had a problem with drunks, because (to paraphrase) his client’s dead husband was the biggest drunk you ever saw. He owned it.

Gerry Spence is another legendary trial lawyer. He represented an accused white supremacist who held off federal agents in a lengthy armed standoff. The government put all of his firearms on a table for the jury to see, along with some other incriminating materials. Gerry Spence turned the image on its head, asking the jury, in closing (to paraphrase), “What would we see if we went into your closet, and gathered up all the things that might look bad, and put them on a table for strangers to judge you about?” So he acknowledged his client’s flaws. Then he held up a mirror to those tasked with judging him. All of it truthful and undeniable.

Trial lawyers are watched, judged, and evaluated by strangers who decide the victor. Those strangers are humans. And human beings form opinions quickly, often based on feelings and gut reactions. The more real and authentic the lawyer, the more likely that the jury will find in their client’s favor. But that cannot be bought for the trial like a new suit. It must be earned with self-awareness and integrity over time.


Arizona Copyright Update – March 2023

By Matthew Hersh

arizona state flag

Here’s a quick look at what’s been happening in the copyright world since our last newsletter. It’s been a fairly slow quarter, which is typical over the winter. Expect a lot more action in the months to come.

Supreme Court

Well, we’re still waiting for decision to come down in the Goldsmith v. Warhol case, which was argued in October and is ripe for decision. This is the case, followers of this blog will remember, that pits photographer Lynn Goldsmith against the estate of Andy Warhol. (We wrote about it here.) Warhol “borrowed” a photo Goldsmith had taken of Prince in 1984, did his classic silkscreened stylization of it, and then marketed it as his own. Goldsmith claims robbery. Warhol’s estate claims fair use. Who is right? We’ll find out soon.

One possible reason that we don’t have a decision yet in the case is that the Court just heard arguments in another intellectual property case raising similar issues. The case is Jack Daniel’s v. VIP Products. (We wrote about in our December newsletter.) In that case, an Arizona company operating as MyDogToy.com put out a product called the Silly Squeaker Liquor Bottle. The toy is an obvious take on the classic Jack Daniel’s bottle, except that the label reads Bad Spaniels and the words “Old No. 7 Tennessee Sour Mash Whiskey” are replaced with “The Old No. 2 on your Tennessee carpet.” Jack Daniels did not see the humor. The dog toy maker saw it as free speech. Oral argument was held on March 22.

Ninth Circuit

Reilly v. Wozniak: Here’s another case with Arizona roots. We wrote about it in a January news flash. The case centers on Woz U, a Scottsdale tech school that Wozniak started in 2017. A professor at the University of Hartford business school claimed the idea was his and sued. The Phoenix federal court affirmed. In January, the Ninth Circuit affirmed. In addition to the Mestaz Law blog, I covered this case in the IP Law Daily here.

Evox Productions, LLC v. Chrome Data Solutions, LP: Not the most earth-shaking copyright opinion but copyright litigators will want to keep it in mind. The statute of limitations for copyright claims is three years. But can parties contract to shorten that time limit? The case arose in California, so the question was whether California law would give effect to an agreement to shorten a statute of limitations. Years ago this would not be permissible in California, but latterly the law of the Golden State had softened up. So this agreement would be given effect.

District Court of Arizona

Diaz v. Schweikert. We covered this case in our fall newsletter. David Schweikert, the Republican Congressman from Arizona’s 6th congressional district, ran an openly homophobic primary campaign against Elijah Norton. Among other things, he ran a photo of Norton with another man with the caption “Elijah Norton isn’t being straight with you.” But he never got the permission of the photographer who took the photo! The photographer sued for copyright infringement (and the other man sued for defamation in state court). The parties are in the middle of discovery, but last month Schweikert moved for judgment on the pleadings, alleging fair use. That motion is fully briefed and ready for decision. Snell & Wilmer is representing the photographer; Timothy A LaSota represents Schweikert.

Fornix v…Everyone? Fair warning: You probably won’t want to google a lot of the names in this case. Fornix and CP Productions are apparently two Arizona corporations that produce and market adult films through a website whose name is decidedly not for a family-themed blog. (The complaint refers to it as GHS.com and we’ll do the same. Seriously, do not try to google this.) Anyway, since the porn merchants are based in Arizona, they’ve decided to file about half a dozen lawsuits here against several individuals accused of sharing their films online as well as (for good measure) Internet providers Google, Cloudflare, and Namecheap, an Arizona webhosting service. This is a pretty common tactic that lots of judges around the country are tired of – porn merchants going after people who share their videos and hoping for a quick settlement from a bashful defendant who doesn’t want his name in the docket. Fennemore Craig is representing Namecheap, Dorsey & Whitney is representing Verisign, and Bryan Cave is representing Google.

Other interesting cases I recently covered for the Intellectual Property Law Daily

 
W.D. Tex.: Split widens on independent creation as an affirmative defense, Jan 4, 2023. A developer and an architect accused of purloining another architect’s floor plans was entitled to claim independent creation as a defense to the claim even though it had not formally pleaded it as an affirmative defense, the federal district court for San Antonio has held. The court’s wide-ranging opinion also touched on the validity of the architectural firm’s design plans, the application of the implied license doctrine, and the question of whether the Section 120 copyright defense insulated renderings of architectural works that had not yet been completed (Kipp Flores Architects, LLC v. Pradera SFR, LLC, January 2, 2023, Rodriguez, X.).

N.D. Cal.: Prominent music composer moves forward in longtime battle against YouTube, Jan 6, 2023: A jury would have to decide whether an award-winning composer granted YouTube a blanket license to her musical compositions, the federal court for San Francisco has held. But the court’s ruling, which kept alive for now the composer’s class action against the video hosting behemoth, came with some potentially costly losses for the musician and artists’ rights advocate (Schneider v. YouTube, LLC, January 5, 2023, Donato, J.).

11th Cir.: No second act for a frequent litigant in Florida, Jan 9, 2023: A federal court in Palm Beach, Florida, correctly found that a writer and frequent copyright litigant could not show he had registered two articles on the subject of trains, the U.S. Court of Appeals for the Eleventh Circuit has held. But the court, affirming in an unpublished document the district court’s grant of summary judgment to a central Florida newspaper, declined to impose sanctions on the writer for the ostensibly frivolous appeal (Vient v. Highlands News-Sun, January 5, 2023, per curiam).

W.D. Pa.: In Living Color: Look and feel of Living.AI robot may be evidence it infringed a competitor’s code, Jan 10, 2023: The maker of a popular consumer robot adequately alleged that a competitor purloined its source code even though it had not yet made a comparison between the two sets of code at issue, the federal court for Pittsburgh has held. The court, in rejecting the competitor’s motion to dismiss and thereby allowing the case to move forward, found that the robot maker’s allegation that the two robots had similar visual outputs was enough for a factfinder to infer that the competitor had taken its source code (Digital Dream Labs, Inc. v. Living Technology (Shenzhen) Co., Ltd., January 6, 2023, Wiegand, C.).

C.D. Cal.: Who’s your daddy: Jamaican dancehall legends take on Daddy Yankee and dozens of other reggaeton stars Jan 12, 2023: A copyright infringement lawsuit that targets Daddy Yankee, Luis Fonsi, and countless other prominent reggaeton artists got a boost forward this week as a Los Angeles federal court set a series of binding deadlines for the parties to respond to the complaint and to brief opening motions. The widely covered lawsuit, which made waves in the music industry upon its filing last September, claims that a single song and its licensed derivatives were used as the backbone for an entire generation of dancehall music – to say nothing of the billions of dollars those allegedly unauthorized covers have generated (Browne v. Clark, January 11, 2023, Birotte, A.).

3rd Cir.: A disbarred lawyer continues to haunt his prior clients Jan 17, 2023: A Pennsylvania district court correctly dismissed a copyright infringement case for failure to prosecute where the case was hamstrung from the beginning by a plaintiff’s lawyer with a reputation for misconduct, the U.S. Court of Appeals for the Third Circuit has held. The court, declining to reinstate an ad agency’s case against a supermarket chain that allegedly purloined some of its photos, underscored in its unpublished decision that in light of the long relationship between the ad agency and its ethically challenged attorney, the agency could not claim ignorance of its attorney’s dilatory conduct (Adlife Marketing & Communications Co., Inc. v. Karns Prime and Fancy Food, Ltd., January 13, 2023, Restrepo, L.).

W.D.N.C.: Court laments that its hands are tied under DMCA, Jan 18, 2023: A company that services medical devices could not rely on FDA regulations to protect itself from liability under the Digital Millennium Copyright Act for circumventing the security system of a medical testing system, the federal district court for Charlotte, North Carolina has held. The court, also lamenting that its “hands were tied” under what it viewed as a stringent DMCA regimen went further than Congress intended, also noted that Copyright Office regulations protecting medical device servicers from claims such as the ones in this case were implemented only after the lawsuit and were not retroactive (Philips Medical Systems Nederland B.V., v. TEC Holdings, Inc., January 17, 2023, Cogburn, M.).

Man versus machine: Artists take on AI-created images, Jan 19, 2023: The companies behind an array of artificial intelligence products that allow users to generate custom-tailored images with the touch of a button violate the intellectual property rights as well as the rights of publicity of thousands of artists, a new class action lawsuit asserts. The lawsuit, filed in the federal court for San Francisco, alleges that the companies unlawfully collected millions of images from the internet and then used those images, without permission, to train their computers to make on-command derivatives of those works (Andersen v. Stability AI Ltd., January 13, 2023).

D. Del.: Court issues a straightforward reminder of copyright standing rules, Jan 23, 2023: A company that transferred ownership of a copyright to its corporate parent did not have standing to seek damages for the profits it allegedly lost when the copyright was later infringed, the federal court for Delaware has held. The court, in disposing of a small part of a much larger battle between two pharmaceutical industry behemoths, emphasized that the subsidiary’s economic interest in the parent’s activities alone was not enough to make it a beneficial owner of the parent’s copyright (AMO Development, LLC v. Alcon Vision, LLC, January 23, 2023, Connolly, C.).

My Humps, My Poops, and a ‘slime surprise’, Jan 24, 2023: A leading manufacturer of children’s toys and entertainment purloined the words and music of a recognizable pop song by the Black Eyed Peas, music publishing power house BMG alleges. The lawsuit, filed by BMG’s affiliated record company and music publisher in the Southern District of New York, demands a whopping ten million dollars in damages for the alleged copyright infringement (BMG Rights Management (US) LLC v. MGA Entertainment, Inc., January 19, 2023).

S.D.N.Y.: Class dismissed: Recording artists must proceed individually in termination cases against their labels, Jan 30, 2023: A federal court denies class certification in the landmark music industry showdown. A group of prominent recording artists who entered into record label contracts in the 1970s and 1980s could not represent a broader class of musicians in their demand to terminate those agreements under the Copyright Act, the federal district court in Manhattan has held. The court, denying class certification in the widely followed litigation, came as a heavy blow to the recording artists in a dispute that has been brewing between musicians and their labels for over a decade (Waite v. UMG Recordings, Inc., January 27, 2023, Kaplan, L.).

Trump, claiming ownership of his words, hits Bob Woodward with a $50 million lawsuit, Jan 31, 2023: Donald Trump, who once famously claimed that he knows words and even that he has “the best words”, now claims to own those words as well. The former President, in a lawsuit that hit with a splash recently, contends that veteran reporter Bob Woodward and his publisher used his words out of context and without permission in his latest book, and seeks $50 million in damages as a result (Trump v. Simon & Schuster, Inc., January 30, 2023).

Church of the Latter-Day Saints confronts a modern-day legal problem, Feb 1, 2023: The Church of Jesus Christ of the Latter-Day Saints, Brigham Young University, and several other affiliated entities have been exploiting the artwork of a former church member in violation of her exclusive rights under the Copyright Act, a new complaint alleges. The lawsuit, brought by the now late painter’s estate, also alleges that the Church and its affiliates used the artist’s name and likeness in violation of federal and state trademark laws (Teichert v. Church of Jesus Christ of Latter-Day Saints, January 30, 2023).

Was Rick Astley rolled by a soundalike?, Feb 2, 2023: A breakout young rapper hired a singer to imitate the voice of 1980s pop star Rick Astley in his latest smash hit song, a new lawsuit asserts. The complaint, filed in a California state court, alleges that the rapper hired the soundalike to get around his inability to sample the original recording, thus invading Astley’s common law right of publicity and violating the singer’s rights under federal trademark law.

Radio Free America? Lawmakers move once again to require broadcasters to pay for licenses, Feb 3, 2023: Radio broadcasters and the companies that own them have been getting a free ride for far too long under a longtime provision of the Copyright Act, a bipartisan group of Senators claim. The legislators, in reintroducing the American Music Fairness Act (S. 4932), raise once again an issue that has cleaved the music community for decades.

Getty Images takes aim at Stability AI in new infringement lawsuit, Feb 7, 2023: Stability AI, the creator of a software interface capable of generating digital content using artificial intelligence did so by engaging in “brazen infringement” of intellectual property on a “staggering scale,” a new federal complaint asserts. The lawsuit, filed in the District Court for the District of Delaware by Getty Images (one of the nation’s leading photo agencies) is only the latest to take aim at the newly developed software solution and promises to raise a host of unresolved questions about the application of traditional intellectual property laws to unanticipated computer-aided technologies (Getty Images (US), Inc. v. Stability AI, Inc., February 3, 2023.).

Sun shines dimly on lawsuit over prominent funk band, Feb 8, 2023: A former member of a prominent 1970s musical group was precluded by the statute of limitations from asserting a claim of ownership over the band’s musical compositions, the federal court for Miami has held. The court, in granting summary judgment for a co-writer of the songs as well as his music publishing company, appears to have promptly settled, at least for now, a contentious and long-running dispute between the two members of the group (Finch v. Casey, February 7, 2023, Torres, E.).

No copyright for Bitcoin 1.0, a UK court rules, Feb 9, 2023: The self-proclaimed creator of Bitcoin was not entitled to haul two American companies into a United Kingdom court for alleged infringement of the Bitcoin blockchain file format because he could not prove that the format had ever been fixed in a material object, the chancery division of the England and Wales high court has ruled. But the court, issuing one of many preliminary rulings in the closely watched case, nonetheless made clear that the alleged mastermind behind the popular digital coin – if indeed he could prove he was the inventor – could still bring a claim for infringement of the white paper that launched the controversial digital currency itself.

Mr. Nolan if you’re nasty: Songwriter alleges illegal sampling of his 1970s composition, Feb 10, 2023: A musical composition written in the 1970s by an easy listening fan favorite was sampled without authorization by three rap performers several decades later, the singer-songwriter has alleged in a new federal complaint. The lawsuit, filed in the federal court for Los Angeles, alleges that the three rap performers as well as their music labels are responsible for infringing upon his rights to the musical composition (Nolan v. Universal Music Group Holdings, Inc., February 9, 2023).

6th Cir.: Band of brothers: A legal battle between Don and Phil Everly draws closer to an end, Feb 13, 2023: The Copyright Act’s three-year statute of limitations for asserting a claim of authorship applies not only to a plaintiff but also in some cases to a defendant, the United States Court of Appeals in Cincinnati has held. The court, advancing perhaps one step closer to the resolution of a long-running dispute between two members of the Everly Brothers, found as a matter of law that a defendant who seeks to assert an affirmative defense of authorship – at least when in response to a claim of authorship by the plaintiff – may do so only within three years of the time the authorship claim was repudiated (Garza v. Everly, February 10, 2023, Bush, J.).

Production company throws red flag at soccer league, Feb 22, 2023: The production company behind the theme music to Monday Night Football (as well as a wide range of television dramas) is calling foul on Major League Soccer, according to a complaint filed in the federal district court for Los Angeles. The lawsuit, which names not only the soccer league but also its member teams, asserts that the league purloined the company’s music for its promotional videos (Associated Production Music LLC v. Major League Soccer, LLC, February 16, 2023).

D. Alaska: A house is a house is a home: Floor plan contains too many “basic architectural elements” to support infringement claim, Feb 23, 2023: A jilted homebuilder whose floor plans were allegedly purloined by the homebuyer to whom it initially licensed those plans could not succeed on an infringement claim against that homebuyer because the house design that later resulted was not substantially similar to the originals, the federal district court in Anchorage, Alaska, has held. The court, in granting summary judgment for the homebuyer, also found that the homebuilder could not prevail in its lawsuit based on a combination of elements in those plans (Sumner Company v. Jordan, February 22, 2023, Holland, H.).

Artificial intelligence can’t outwit Copyright Office, Feb 24, 2023: An artist who submitted computer-generated images as part of an illustrated comic book was not entitled to register a copyright in those images, the U.S. Copyright Office has concluded. The Office, in an opinion letter drawn up by the Associate Register of Copyrights, found that while the artist’s words and selection and arrangement of images were susceptible of copyright, she could not register the images that were generated with the assistance of artificial intelligence because she was not the “mastermind” behind those images.

9th Cir.: Separate ways: Music publishers have individual bankruptcy claims against karaoke music company, Feb 27, 2023: Music publishers who banded together to sue a pirate karaoke company for copyright infringement were entitled to force the owner of that company into bankruptcy because each of them had individual and divisible statutory damages claims, the U.S. Court of Appeals for the Ninth Circuit has held. The court, reversing an Arizona bankruptcy court in a case that presented the rare confluence of bankruptcy and copyright law, held that the bankruptcy statute’s “numerosity” requirement was satisfied because each publisher’s entitlement to statutory damages under the Copyright Act could be individually computed (In re Priddis v. Sony Music Publishing (US) LLC, February 24, 2023, Wardlaw, K.).

11th Cir.: The Second Circuit takes another hit over discovery lookback rule, Feb 28, 2023: A prominent 1980s music producer and his publishing company will be entitled to claim damages going back over a decade if they prevail in a copyright infringement lawsuit against the companies behind a collection of recent chart-topping songs, the U.S. Court of Appeals for the 11th Circuit has held. The court of appeals decision, which comes on an interlocutory appeal in a case still pending in a Miami district court, widens even further a split that has emerged in recent months over the application of the discovery rule in the case of a continuing copyright infringement (Nealy v. Warner Chappell Music, Inc., February 27, 2023, Brasher, A.).

C.D. Cal.: Unhappy union: SAG-AFTRA loses DMCA claim against AT&T, Mar 1, 2023: The principal labor union representing television and theatrical actors failed to state a claim against AT&T under a little-known provision of the DMCA because it failed to adequately allege that the multimedia giant was aware of the existence of a collective bargaining agreement when it picked up the rights to a short-lived television show, the federal court for Los Angeles has held. But the court, in turning back the claim, reaffirmed that neither the DMCA nor analogous provisions of labor law necessarily required the union to be in direct contractual privity with AT&T in order to enforce the agreement (Screen Actors Guild-American Federation of Television and Radio Artists v. LABC Productions, LLC, February 24, 2023, Olguin, F.).

A serial litigator is first past the post at the Copyright Claims Board, Mar 3, 2023: A California lawyer who posted to his website an aerial photograph of a federal courthouse did not engage in a fair use of that photograph, the Copyright Claims Board has held. The relatively straightforward decision, which awarded only modest damages to the photographer who brought the claim, is the first ruling on the merits to be issued by the newly established Claims Board (Oppenheimer v. Prutton, February 28, 2023, by the Board).

D.S.C.: Architect’s motion to strike copyright counterclaims should have stayed at home, Mar 13, 2023: A motion to strike two counterclaims in a copyright lawsuit over a series of home designs was premature because it challenged the factual basis of the counterclaims rather than whether they adequately stated legal claims, the federal court for Charleston, South Carolina, has held. The court, in what was essentially a basic refresher on civil procedural rules, found that it was enough for the time being that the counterclaims effectively stated claims, even if their factual underpinning was in dispute (Kenneth Miller Architecture, LLC v. Sabal Homes LLC, March 9, 2023, Norton, D.).

N.D. Ga.: Does an exclusive right to grant an exclusive license amount to an exclusive right under the Copyright Act?, Mar 14, 2023: An agency that held an exclusive right to license out the rights to a series of photographs did not have standing to bring a lawsuit for the alleged infringement of those photographs because the agency held only a right under contract law and not an exclusive license under the Copyright Act, the federal court for Atlanta has held. The court, in granting a motion to dismiss brought by an artist who allegedly made unlawful derivative works of the photographs, drew on a 1987 precedent involving a famous children’s toy to reach its conclusion (Creative Photographers, Inc. v. Julie Torres Art, LLC, March 13, 2023, Boulee, J.).

Did a luxury carmaker roll one of its suppliers?, Mar 15, 2023: British luxury carmaker Rolls Royce absconded with the software and trade secrets of a former contractor whose technology allowed would be car buyers to see in advance through computer generated images what potential customizations might look like, a new federal complaint asserts. The complaint, filed in the Los Angeles federal court, alleges that the carmaker violated both the Copyright Act as well as the Defendant Trade Secrets Act by its conduct (Topalsson GmbH v. Bayerische Motoren Werke AG, March 10, 2023, Wu, G.).

S.D.N.Y.: ‘Artful pleadings’ cannot avoid a copyright claim, a court reminds litigators, Mar 16, 2023: Two singers and songwriters could not keep their lawsuit for copyright infringement against an independent music label out of federal court by pleading it as a claim for common law relief, the federal district court for Manhattan has decided. The court, in dismissing the songwriters’ motion to remand their lawsuit back to a state tribunal, offered a simple and brief reminder about the workings of federal court jurisdiction when it comes to copyright claims (Rios v. MicMac Records, Inc., March 14, 2023, Torres, A.).

C.D. Cal.: Show me some ID: Fashion vendor did allege theft of copyright management information, Mar 17, 2023: A fashion company failed to state a claim under the Digital Millennium Copyright Act because it failed to allege that the copyright management information it alleged to have been unlawfully removed by a competitor was close enough to the allegedly infringed photos, the federal court for Los Angeles has held. The court, in granting the competitor’s motion to dismiss, also rested on the fact that the file names for the images, while identifying the works in question, also did not identify their authorship (Fashion Nova, LLC v. Blush Mark, Inc., March 15, 2023, Lew, R.).


When and How Was The United States Office of Copyright Created?

The Philadelphia Spelling BookCongress enacted the first federal copyright law on May 31, 1790, shaped off the Statute of Anne in Britain, and protected for 14 years a small list of works, including maps, charts, and books. A renewal of an extra 14 years was available too. There was no office to manage this new legislation though. Before an agency existed in 1897, works were registered with and deposited in US district courts, and kept in many places, such as the Department of State, Department of the Interior, Smithsonian Institute, and Library of Congress.

The first copyright submission under the new federal law was by John Barry to the US District Court of Philadelphia on June 9, 1790, just over a week after the law went into effect. As the schoolmaster of the Free School of Philadelphia’s Protestant Episcopal Church, he registered the Philadelphia Spelling Book, which endeavored to improve both spelling and reading in the country’s youth.

Administering the copyright law happened on July 8, 1870 when Congress consolidated the responsibility to the Library of Congress. Finally, on July 22, 1897, the US Copyright Office was created and financed as a department within the Library. Copyright law has evolved quite a bit since its inception, and the US Copyright Office has been heavily involved in that endeavor.

According to Copyright.gov:

“The U.S. Copyright Office is an important part of the copyright system, responsible for administering a complex and dynamic set of laws, which includes registration of works, recordation of documents pertaining to copyright, facilitation of statutory licensing provisions, and implementation of other aspects of the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act.

By statute, the Register of Copyrights is the principal advisor to Congress on national and international copyright matters, testifying and providing ongoing leadership and impartial expertise on copyright law and policy. Congress relies on and directs the Copyright Office to provide critical law and policy services, including policy analysis, legislative support, assistance to the courts and executive branch agencies, and participation on U.S. delegations to international meetings.

The Office provides a variety of services to creators and users of copyright protected works and helps copyright owners keep their records up to date, preserving a public record of the country’s creativity.”

Modern copyright law involves many other categories of original work than those originally protected, and several revisions to the law over the years reflect that. With all the innovation in technology that has happened since then (and especially with the Internet), it’s a good thing that creators have a way to protect their unique works.


 

Mestaz Law is a commercial litigation firm serving businesses, business owners, business executives, and entrepreneurs.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us, though doing so does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Our description of what we believe to be superior technology and how we win cases reflects our typical approach to litigation, which we believe:  (i) gives us a competitive advantage, and (ii) is responsible for any success we have had. But we do not win every case. Other lawyers may have technology or approaches that they believe gives them an advantage. Also, the results that we have obtained in other cases or that are described in our clients’ testimonials do not guarantee, promise, or predict the outcome of your case, which depends on the law, facts, and evidence specific to it.