Roger Miller Music, Inc. v. Sony/ATV Publishing 2007 WL 443048
In what is becoming a normative complicated and attenuated set of facts for a renewal case, this case involves whether the renewal of Roger Miller’s 1958 - 1964 music was timely.

Mary Miller, the widow of Roger, sued Sony for copyright infringement asserting that the Roger Miller estate and not Sony owned the renewal rights. Key to the complicated set of facts is that Sony filed the renewal documents on behalf of Miller personally in the twenty eighth year, before Miller died later in that same twenty eighth year.

This tee-ed up the question simply as: can a copyright renewal term vest before the renewal term begins?

The issue is further complicated because these pre-1978 musical works are now governed by the 1998 Bono Copyright Extension Act which states:

Section 304(c)(2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which —

(i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the application is made; or

(ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright.

The trial court ruled that because Roger Miller was alive at the time that Sony filed the renewal, the renewal rights went to Sony.

The renewal rights of the pre-1978 works are proving to be valuable; and the courts are giving us more guidance on when and how the timing of the renewal dance works. More proof that copyrights are economically vibrant, still.

Tenn. Walking Horse v. Nat’l. Walking Horse 2007 WL 325774 (M.D. Tenn. Jan. 31, 2007)

Out of Tennessee, we learn that facts about horses that are selected, arranged and organized in a registry are copyrightable.

Here are the facts: The Tennessee Walking Horses Breeders Association of America (TW) has been keeping a registry since 1935 which keeps the details of just under half a million horses’ pedigree and related information such as identifying details, unusual markings and legacy data.

In part precipitated by the controversy over ’soring’ the Tennessee Walking Horse, a separate association, The National Walking Horse Association, (NWHA) was formed in 1998 to promote the breeding of that specific horse breed without the training technique called ’soring’ that makes the horse lift their feet in the archetypal manner of that breed. In July of 2004, the NWHA rolled out a registry that was to be analogous, but separate from the TW registry.

TW obtained a copyright registration for its registry; and, filed a copyright infringement action against the NWHA alledging that the NWHA registry infringes the TW registry compilation copyright. TW’s summary judgment motion details that their registry comprises facts that are specifically selected, organized and arranged, including unique colors and combinations, markings, identifiers and abbreviations. (“blaze lower lip, sock left hind leg,
fetlock right hind leg”).

Judge Todd Campbell, of the Tennessee federal trial court ruled, in January of 2007, that the copyright registration is valid and that NWHA’s copying constituted copyright infringement. The court discarded the NWHA’s defense that that the small facts of that were used were ‘de minimis’.

A couple of individuals whose last names are Tucker and Ruth have filed a couple of important law suits in the last month. Class action law suits which means that the plaintiff is asserting that the true number of plaintiffs that form the ‘class’ in the ‘action’ are too numerous to count. The operative word is “individuals” here because that is the constituency of people who are downloading music from Apple’s iTunes and buying music from the conventional big music players (Sony, BMG, Universal, TimeWarner).

The two class action cases are based on a claim that Apple and the big music players are effectively a monopoly because they collectively are over 75% of the market providers of music; and, because they have deliberately and consciously disabled the individuals in the market from having the right/ability to use the music that they are acquiring over different platforms. In short, it is the choke hold that Apple and the big music players have over the music buyers options of how or where to play the music that is the problem.

The law suits are a further indication that the consumer market is growing intolerant with being dictated to and restricted in how the music plays. The ‘Consumer Technology Bill of Rights’ has been percolating through the grassroots communities for some time and involves these rights:

1. Users have the right to “time-shift” content that they have legally acquired.
This gives you the right to record video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.
2. Users have the right to “space-shift” content that they have legally acquired.
This gives you the right to use your content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you’re jogging.
3. Users have the right to make backup copies of their content.
This gives you the right to make archival copies to be used in the event that your original copies are destroyed.
4. Users have the right to use legally acquired content on the platform of their choice.
This gives you the right to listen to music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer.
5. Users have the right to translate legally acquired content into comparable formats.
This gives you the right to modify content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.
6. Users have the right to use technology in order to achieve the rights previously mentioned.
This last right guarantees your ability to exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.

These cases pursue number two and four, above, the right to space shift and the right to use legally acquired content on the platform of their choice.

The Recording Industry Association of America (RIAA) seems to have gotten a grasp on the solution ahead of the big music company members who comprise the RIAA. Cary Sherman, president of the RIAA, recently joined in possibly supporting these two ‘rights’ when he said, “We are focused on interoperability”.

What interoperability will look like; and whether the leading device manufacturers, Apple and Microsoft, will begin to offer some version of ‘pret a porter’ remains to be seen. But the recipients of music are definately not passive recipients. Consumers want the music and they want to be able to take it with them beyond the machines from which they first legitimately access it. Watch this space. As it is known, we’ll be discussing it here.

Jeff Koons has contributed mightily to measuring the metes and bounds of what constitutes ‘fair use’ in making unauthorized use of someone else’s copyrights. He did it with images of puppies; he did it with celebrity photographs; and now, he’s done it again with ladies legs.

To begin at the beginning, Andrea Blanch, a professional photographer, took a series of photographs of women’s legs that were used in the August 2000 issue of “ALLURE” magazine.

Jeff Koons, in fulfilling on a commission from the Guggenheim Foundation and Deutsche Bank, elected to scan a portion of Blanch’s legs; and, then Koons took the digital scan of Blanch’s work and digitally superimposed those Blanch images against a background of pastoral landscapes. The resulting image is said to comprise to a ‘collage’ which was then reduced to templates for painting upon billboard sized canvases and entitled “EasyFun-Ethereal”. The Koons’ collage (with Blanch’s work embedded) was exhibited in 2000 and 2001 in Berlin and New York City.

Blanch sued; and, Koons succeeded at the trial court level on his defense of fair use. Blanch appealed; and the Second Circuit had a long look at the picture. After the court found that the first and second factors of the four-part fair use analysis demonstrated that the collage was both transformative and constituted social commentary. With ‘transformative’ recognized, it was not surprising that fair use was found, but it didn’t help when Blanch admitted that the use of her photographs did not harm her career, the market for her work or the value of the work in the market place. ( No. 05-6433-cv, 2nd Cir.; 2006)

Koons must be appreciated for his fondness for incurring legal fees. He is a Don Quixote of ‘Fair Use’ who has quite a track record for galvanizing fine copyright case law. Maybe there is a Guggenheim grant funding that quest on which Koons has led so many lawyers and students. Not surprisingly, Koons had his own team of lawyers; and the Guggenheim Foundation had their own team of lawyers; Deutsche Bank had their own team of lawyers…. and giving a grant to Koons begins to look like that old PRELL commercial for lawyers’ full employment.

Chris Gregerson, an individual professional photographer representing himself in Minneapolis federal court, fails in obtaining an injunction against a financial institution that appropriate his photograph of the Minneapolis skyline; but succeeded in eluding a defamation counterclaim.

Defendants use the allegedly infringing photograph in their real estate web ads, print ads, brochures and in third party business directory advertisements, changed only by the elimination of Gregerson’s copyright notice.

Gregerson, after learning of the infringement and finding no satisfaction in his demand that defendants stop infringement, posted on his own website to make his accusation of copyright infringement more public and explicit. The defendants in Chris Gregerson v. Vilana Financial Inc. et al (No. 06-1164, D. Minn.) counterclaimed that Gregerson’s website constituted defamation and trademark infringement. Specifically, the defendants claim that the organic search engine results are skewed as a result of the defendant’s trademarks depicted in Gregerson’s website.

Gregerson defended claiming a first amendment right to state his criticism of defendants.

This is another in a long line of cases where the First Amendment trumps intellectual property causes of action; and it especially predictable when the First Amendment claim includes a criticism.

Now with YouTube allowing 90,000 new videos to be posted daily, this action is remarkable not for the controversy but because Gregerson knew, could locate and serve the parties that are making allegedly unauthorized use of his photographs. Take a look at the YouTube site and especially the most popularly viewed. None of the photographs, music or other third party copyright is authorized on YouTube; and we haven’t see a spate of law suits. What a boon that safe harbor clause of the DMCA is for us all, right?

The U.S. Copyright Statute has two symmetrical parts to Section 102. The first subsection sets out what is protected (… original expression fixed in tangible medium…”) inside the tent of copyright so to speak; and the second subsection sets out what is prohibited from that tent’s protection (…. In no case shall copyright protection extend to idea, process, system, concept, method of operation…). Over time, we have come to understand that the metaphorical tent of copyright does not extend to function. For function protection, you have to go to the Patent Office’s tent.

But with our government being the best that money can buy, and given that there is more power in PAC lobbying than ever before, a new bill (S.17850) has passed the House and the Senate and needs now only minor ratification in the Senate before it is law. That new bill will extend copyright protection to function, specifically, vessel deck designs. This will be a further extension of the camel’s function nose in the copyright tent that the earlier 2005 legislation brought in protecting vessel hull designs.

This is legislation has been specially lobbied through by the small craft design and manufacturing community; and, is the harbinger of the garment design (’fashion’) bill that is in line to be addressed next. The proposed garment design bill will grant a three year monopoly to garment designers on patterns and features of clothing. Who knows, perhaps the optical design and manufacturing community will succeed in proposing new legislation for optical gear which has eluded protection to their satisfaction… and then we’ll approach the whole head of the camel coming in under the tent of copyright.

Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. Nov. 3, 2006)

Pamela Reeder is the founder of Haute Diggity Dog which is dedicated to making fun of our globalized disease of affluenza while making some of her mortgage payment. Her company is self described as a “parody, plush, pet toy company” and the images of her products are depicted below, including “Sniffany & Co,” “Chewnell No. 5″ and “Chewy Vuiton.”

When Louis Vuitton filed a trademark and dilution action in Virginia against the parodist, the court lost no time in ruling in favor of Haute Diggity Dog, saying:

“This dog of a case gave the court a great amount of facts to chew upon and applicable law to sniff out. Nonetheless, having thoroughly gnawed through the record, this Court finds that no material dispute of the fact remain.”

and:

“The name “Chewy Vuiton” is, like “Timmy Holedigger,” an obvious parody of a famous brand name. The fact that the real Vuitton name, marks, and dress are strong and recognizable makes it unlikely that a parody-particularly one involving a pet chew toy and bed–will be confused with the real product.”

Vuitton also claimed copyright infringement. Why not just trademark infringement? Because, in 2002, Vuitton collaborated with Japanese pop artist Takashi Murakami to re-invent Vuitton’s signature gold and brown monogram design. What resulted was a multicolor monogram design and a line of handbags and accessories that inspired a cult-like following. It seems that Murakami filed a copyright application for his design in 2002. On-line Copyright Office records list Vuitton as claimant and the work as “work made for hire.”

The opinion raised the question of ownership of the copyright but concluded that the issue was irrelevant because defendant’s use of the copyrighted work was fair use, specifically a parody.

It is interesting to note that the court analyzed whether “Chewy Vuitton” and the “CL” monogram constituted copyright fair use, even though LOUIS VUITTON and the VL monogram are really trademarks, not copyrights. The issue should have been instead whether defendant’s overall design and arrangement of colors constituted fair use of the Murakami copyrighted design.

The case of MGM v. Grokster continues while everyone has moved on. Streamcast, one of the defendants, in the action was found liable under copyright contributory infringement for the Morpheus software.

Judge Wilson in Los Angeles held “evidence of Streamcast’s unlawful intent is overwhelming” in the way that the Morpheus encouraged users to violate copyright law.

Two other defendants, Grokster and Kazaa, have already settled.

Recently, the Belgian Court of First Instance ordered Google to both cease excerpting snippets of text from French and German-speaking papers; and that Google post the injunction order on the Google website.

Google contintues to scan thousands of news outlets and books and has done so since 2002.

The Belgian court was unmoved by Google’s defense that the snippet copying was intended to drive traffic to the originating news site. Google found the order to post on the Google website the Belgian website “disporportionate and unnecessary”.

Perhaps the most underreported area of copyright infringement in the last decade has been in the home craft and stitching community. The needlepointers have made wholesale, unauthorized copies of patterns; the garment and accessory (patterns which in the ’60’s we paid handsomely to meet our home economics and merit badge requirements) bespoke community have made unauthorized copies galore; and now we have a case involving those plastic cards that we pop into our high tech modern sewing machines.

The Eighth Circuit recently affirmed summary judgement for the craft store that was renting the plastic, memory cards from which the sewing machine takes the direction for producing the embroidery designs. Action Tapes, Inc. V. Mattson (Nos. 05-3309m 05-3520 (8th Cir. Aug 30, 2006).)

The plaintiff, Action Tapes, failed to register the computer software and the requisite source code in the Copyright Office under the 1990 Computer Software Rental Amendments Act.

This, a case of first impression, gives a good map of where the next software embroidery designs plaintiff needs to go to succeed next time.