Led Zeppelin is Going to California – and Back to Court

There’s a lady who’s sure all that glitters is gold…

The question is, who gets the gold?

She’s Climbing the Stairway to the Courthouse (Again)

The music industry breathed a big sigh of relief two years ago when Led Zeppelin beat a lawsuit accusing the band of infringement in their anthem “Stairway to Heaven.” It was only a year after Robin Thicke and Pharrell Williams “Blurred Lines” was found to infringe Marvin Gaye’s “Got to Give it Up.” That decision had left the industry reeling, and so the stakes in the instant case felt even higher for music creators.

The jury decided in favor of Led Zeppelin quickly. At the time, experts noted that while there could be cause for the plaintiff to appeal, an appeal would probably be unsuccessful due to the stringent standard required.

In spite of facing an uphill battle – and additional legal costs – the plaintiff did indeed appeal…

And won on a few critical points.

(This happened after Thicke and Williams lost their appeal – again surprising the industry, and not in a good way.)

Parts of the decision have been vacated and the case remanded, leaving the parties and the court to start over. The parties need to reargue their cases, and the court needs to (a) treat certain evidence differently and instruct the jury more fully.

Has Led Zeppelin Infringed?

When one party accuses another of infringement, what does that actually entail?

There are two factors required for infringement: a valid copyright and the copying of protect aspects. The copying of protected assets requires (1) copying and (2) unlawful appropriation.

Take note of the fact that copying is required. It is possible for two people could separately dream up a song that sounds substantially similar with neither copying the other. Were such a coincidence to occur, there would be no infringement, because independent creation is complete defense.

Of course, to prove infringement (or any other case), you need evidence. Without direct evidence of the elements of copyright infringement, a plaintiff can try to prove their point with circumstantial evidence. In this case, they need to show that Led Zeppelin had access to the protected material and that the original composition in question, “Taurus,” and the copy (“Stairway to Heaven”) share probative similarities.

Now, let’s look at the second part of copying: unlawful appropriation. This requires substantial similarity. Such similarity(s) must include parts of the plaintiff’s work that are protected.

Whether substantial similarity exists can be determined by a pair of tests. The extrinsic test is an objective comparison test. It compares the individual copyrighted elements from the original with those of the copy. The intrinsic test is a more subjective comparison which seeks to know whether an average, reasonable listener would find a similar concept and feel between the original and the copy.

Available Protections Depend on When “Taurus” was Registered

“Taurus,” the song allegedly being infringed by Led Zeppelin, was registered with the Copyright Office in 1967; at that time, the Copyright Act had last been amended in 1909. In accordance with that version of the Act, whatever was deposited with the Copyright Office was what was to be protected. And the deposit copy consisted of sheet music.

In other words, the musical composition (the melody, the instruments, lyrics, and so forth) was filed and thus protected, but the sound recording wasn’t. The Copyright Act of 1909 didn’t account for sound recordings as deposit copies.

Because of this, the district court kept the music out of the courtroom and barred the plaintiff from playing it in front of the jury. The rationale was that it would’ve been too prejudicial, creating bias within the jury that could affect the outcome of the case.

The appellate court said this was improper. While the recording of “Taurus” couldn’t be played to show substantial similarity, the lower court should have allowed for it to be played to demonstrate access. Any confusion on the jury’s behalf as to how to use the recording should have been used could have been mitigated by a proper explanation.

And that’s not all…

The Jury Instructions Were Misleading

Small musical elements aren’t copyrightable per se. For instance, a single music note can’t be protected. But a collection of notes strung together certainly can.

The trial judge in this case instructed the jury that certain elements aren’t protectable, but failed to instruct that the selection and arrangement of unprotectable musical elements can be protectable.

This is especially problematic in light of the findings of one of the plaintiff’s experts. Using the extrinsic test, the expert found substantial similarity based on a combination of five elements. Some of those elements were in the public domain, but some were protectable.

A different instruction didn’t specify that the “original” part of a work need not be new or novel. However, the instruction did state that elements from public domain or prior works aren’t original, and therefore not protectable by copyright.

These omissions in the instructions weren’t technically incorrect, but the appellate court found them misleading. They suggested that notes strung together would not be copyrightable – even if they were arranged in an original, creative way, as “Taurus” was.

The court found this to be prejudicial. The conclusions a reasonable jury could draw from the instructions and their omissions completely disregard the expert’s findings of substantial similarity under the extrinsic test.

Ultimately, the decision was vacated in part and remanded for a new trial. (Read the full opinion here.)

And so the industry waits again for the outcome…

Do You Have Questions About Copyright or Other Intellectual Property Rights?

Our firm focuses on intellectual property and entertainment law, including copyright, trademark, and patent-related matters. We would be happy to discuss your matter with you. Contact us at (561) 953.9300 or visit us online at http://www.lomnitzerlaw.com to schedule your free consultation.

 

Advertisements
Led Zeppelin is Going to California – and Back to Court

On the Verge: The Biggest Update to Music Copyright Law in Over 40 Years

There’s a copyright bill racing through Congress so quickly that it could become law by the time you read this.

But before we talk about what’s happening now, let’s take a look back at the past for context.

What Does a Piano Have to Do with Music Royalties?

About 100 years ago, player pianos (that is, self-playing pianos) were becoming popular. They relied on rolls of perforated paper to trigger the necessary key and pedal presses that create the music notes we hear.

In 1909, pursuant to a copyright lawsuit that pertained to these player piano rolls, Congress expanded the Copyright Act to include copyright owners’ right to make and distribute (or authorize others to do so) mechanical reproductions of musical works. Monopoly concerns led to the creation of a compulsory license which would anyone to make and distribute a reproduction without consent so long as they paid a statutorily-prescribed royalty of two cents.

That two cent royalty served as a (very low) cap until 1976, when the Copyright Act underwent a major update. (As we always say, the law moves slowly…) That year, Congress decided that mechanical royalty rates would be updated every 5 years. And that’s been the case ever since.

But 42 years later, how we consume music has changed. The media has gone from 8-tracks to cassettes to CDs to digital files. Listening itself has also become more individualized. Headphones have had a major resurgence over the past few years, and music streaming companies use algorithms to serve up custom playlists. Even the very nature of music ownership has changed. Many people that previously owned physical copies of music media now pay instead for a monthly digital streaming license.

As for player pianos? You can still find them, though their popularity has waned. And true to modern life, today’s models often run off of an iPad.

Yet, even with so much innovation in the industry, the laws governing that industry haven’t changed… Until now, possibly, with the impending passage of the Music Modernization Act (“the MMA” or “the Act”).

The Biggest Update to Music Copyright Law in More Than 40 Years

The Act would remove that two-cent cap (which even adjusted for today’s dollars is only 55 cents) and allow the parties to a copyright deal to negotiate freely. The MMA also mandates the creation of a royalties oversight collective and aims to simplify how the money is collected.

The Act is especially good news for songwriters, who often make a very low set amount no matter how many times the song in question has been streamed.

Most of the music industry is on board with the changes – musicians, songwriters, producers, managers, publishers, performance rights organizations, and so forth. In an industry where creators are often pitted against distributors and bitter contractual battles are the norm, this alone is newsworthy.

Of course, not everyone is excited about the bill. Earlier this year, SESAC (a performance rights organization) looked like it might derail the legislation. More recently, Sirius XM looks to be holdout on the industry side. The satellite radio giant argued that the legislation as currently proposed will be exorbitant for them while allowing traditional radio to keep getting royalty exemptions.

The company didn’t seem to mind that it’s battling the rest of the industry… However, that was before 150 artists and executives announced via an open letter their plans to boycott Sirius XM if Sirius XM didn’t change its stance. But some late-stage concessions were added to the legislation that helped secure the company’s support.

To be sure, there are some shortcomings with the bill. For example, the Mechanical Licensing Collective is expected to cost $222 million to operate over the next eight years, while new taxes will bring in only $175 million over the same period. That’s a $47 million shortfall that’s unaccounted for. There’s also the potential for the royalties to be distributed to the wrong party.

Still, even with its flaws, proponents are pushing to have the MMA passed as soon as possible. Why the hurry? The installation of a new Congress could mean starting over from scratch. They’d rather get something passed now while support for it has proven to be so strong.

Congress has been keen to oblige. The bill passed unanimously in the House before heading to the Senate Judiciary Committee, where it again passed unanimously. And as of this writing, the bill was hotlined through the Senate, which means it passed on an oral vote with no objections or discussion. Now it has to go back to the House to approve the changes. Assuming it passes, then it’s on to the President for his signature.

You Said Taxes…

You may have noticed the “T” word – “taxes” – three paragraphs ago. The good news is, the difference in what you’ll pay for music will be miniscule, if anything. The MMA isn’t about asking consumers to pay more. It’s about changing how payments are allocated.

Once the MMA passes and takes effect, we’ll find out for sure… and of course, we’ll keep you informed if there is any consumer impact.

Do You Have Questions About Copyrights, Trademarks, or Patents?

Our firm focuses on intellectual property and entertainment law, including copyright, trademark, and patent transactions and litigation. We would be happy to discuss your matter with you. Contact us at (561) 953.9300 or visit us online at http://www.lomnitzerlaw.com to schedule your free consultation.

On the Verge: The Biggest Update to Music Copyright Law in Over 40 Years

New Boundaries for Copyright Law?

Here’s something we love about intellectual property law.

Technology has led to IP being shared more widely and easily than ever before. So even though the law itself can be slow to change, new potential matters pop up all the time.

What aspects of a photo need to be licensed? Who owns the laughing face emoji you just sent in a text? Those are just a couple of the modern copyright issues we tackle this month.

Too Utilitarian for Copyright Protection?

A recent federal court decision here in Florida is making waves in the legal community. In Pohl v. MH SUB I, LLC (2018 WL 3154467 Northern District of Florida, 2018), the plaintiff dentist sued a competitor for using the plaintiff’s “before and after” photos of his dental patients.

Though the plaintiff had already been granted copyright protection, the court ruled that the plaintiff’s photos didn’t qualify for it. The rationale was that the photos were utilitarian in nature and merely served to identify what someone could expect to get from the business.

In other words, the court said there was nothing original about the plaintiff’s photos. However, “originality” as required by the Copyright Act isn’t about doing something novel or creative; all it means is that the item sought to be copyrighted isn’t copied from somewhere else.

Moreover, it is difficult to quantify creativity and how much of it was required for the photos. To be sure, the images copied were close-up images of mouths. But many decisions were made in order to create them: who to model, what lighting to use, the camera angle, lipstick colors, and more. Are these not creative choices?

The possible implications of this case are massive when you consider other types of cases this ruling could impact. According to this reasoning, any photo that’s part of a reality-based ad campaign isn’t copyrightable.

We’re curious to see if the plaintiff will appeal to the Eleventh Circuit.

Graffiti Artist Sues GM for Infringement

Should graffiti be copyright-protectable?

That question is at the heart of a lawsuit filed against General Motors by Adrian Falkner, the Swiss graffiti artist known as Smash 137.

Falkner had been commissioned several years ago to create a graffiti mural on a parking garage in Detroit. GM later did a photo shoot for a Cadillac ad campaign in front of the mural. Falkner didn’t authorize or even know about such use, so he filed his suit.

In theory, graffiti should enjoy strong copyright protection, as it is a fixed, tangible form of expression. Yet courts recently have been left to wrestle with a few issues that are far from clear. For example, should commissioned graffiti (like Falkner’s) enjoy more protection than unauthorized graffiti? And what constitutes protectable work? Do words on a bathroom wall deserve the same level of protection as Falkner’s work?

These “gray area” issues have yet to be resolved. Similar suits by other graffiti artists have been either settled out of court or dropped altogether.

For its part, GM defends that Falkner’s work isn’t copyrightable under 17 United States Code § 120(a), which states:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

GM argues that Falkner’s work is part of the architecture, and its placement outdoors on the parking garage makes it publicly visible.

Falkner’s lawyers counter that this exemption within the law was intended to allow the public to photograph and post images of significant structures like the Empire State Building or the Capitol Building in Washington DC. Moreover, to render Falkner’s work not copyrightable under this clause would mean that most graffiti couldn’t be protected, as it’s generally on buildings and often publicly visible.

It’s worth noting that the copyright in a work is separate from the object on which the work is embodied. This is a hurdle GM will need to address as the case progresses.

Like the Pohl case, the implications here could be big. We’ll be watching to see if this case goes to trial.

Who Owns Your Emoji?

Whether you’re texting or on social media, emojis have become an important part of how we communicate.

But here’s a question…

At some point, someone invented emoji. So does the inventor (or someone they assigned their rights to) “own” them?

In other words, are emoji copyrightable? By whom? How are they compensated?

First, a quick history lesson. During the early days of the internet, people would use punctuation keys to create emoji (and sometimes still do).

Pictorial emoji – the earliest versions of the images we see today – were introduced in 1999 for the Japanese mobile network NTT DoCoMo. As users sent them back and forth to each other, they became a huge hit, and other mobile carriers started introducing them.

The problem was that each company that developed their emoji according to their own standards. This meant that if you sent an emoji from your phone to a recipient was on a different mobile network, they may see something completely different than what you’d intended.

The Unicode Consortium addressed the issue in 2010 when it designated 78 emoji as the standard for everyone (many more have been added since). Today, when you send an emoji between mobile networks, you can be sure the person on the other end is seeing what you intended, though there still can be some differences.

Certain emoji are recognizably Apple emoji, recognizably Google’s version, and so forth. For example, you can see the nuances of different companies’ “face with rolling eyes” and “sad but relieved face” in Unicode Consortium’s Full Emoji List.

Keep in mind that emoji consist of computer code. All the companies use the same code to create, say, their grinning face emoji. The subtle differences in how they all look on the screen or page are what makes them copyrightable, to the extent they are.

So every mobile carrier owns their own emoji. This means you’re not supposed to use them for other purposes – like printing them on a mug or pillow, or using them as part of your own communications service. You’d want to use open source or free-license emoji for that sort of thing instead.

Having said that, any copyright protection for emoji is likely to be slim, given that they’re all derivative works of the same computer code. It’s difficult to know for certain how a court would rule, as there haven’t been any major cases about emoji and copyright infringement… yet.

Do You Have Questions About Copyright or Other Intellectual Property Rights?

Our firm focuses on intellectual property and entertainment law, including copyright, and would be happy to discuss your matter with you. Contact us at (561) 953.9300 or visit us online at http://www.lomnitzerlaw.com to schedule your free consultation.

 

New Boundaries for Copyright Law?

IP Case Roundup: International Edition

It goes without saying that international laws aren’t a uniform concept. Trespassing in the US is a much different idea, for example, from trespassing in Scotland.

But then there’s intellectual property. This bundle of rights exists largely in the same form around the world. And ideally, IP would be treated equally and licensed correctly around the world.

Of course, that’s not how things really happen. A recent case that made headlines here in the US is a good illustration.

There’s some interesting IP news coming out of the EU as well right now. Let’s dive in!

USPS Owes Millions Over its Statue of Liberty Stamp

Have you ever wondered where the United States Postal Service (“USPS” or “postal service”) gets its images from for postal stamps?

It’s simple – they use stock photos (at least for some). But the matter becomes complicated when they choose the wrong ones.

This is what happened when the USPS issued its Statue of Liberty stamp in late 2010. The post office chose an image showing a zoomed-in shot of Lady Liberty’s face…

But the photo they chose wasn’t of the real Statue of Liberty. It was a replica which is installed at the New York New York casino in Las Vegas.

The postal service was alerted to its error in 2011 but acknowledged that it would have chosen the same image regardless. The USPS continued distributing the stamp until retiring it in 2014, leading the replica’s sculptor to sue for royalties.

The postal service argued that the sculpture wasn’t entitled to copyright protection because it was a mere replica of a famous sculpture. Moreover, the use of the image was protected under copyright’s fair use doctrine because USPS derived little benefit from using the replica.

Robert Davidson, the sculptor, argued that his sculpture was sufficiently distinct from the original due to his attempts to feminize Lady Liberty’s face. (You can compare the images side by side here.) The US Court of Federal Claims agreed, deeming his work original and thus defeating the postal service’s fair use argument.

The court – which hears monetary claims against the government – then had to decide what Davidson was owed. The USPS asserted that there is huge demand to appear on a postage stamp and that it never had to pay more than $5,000 for a license.

The court disagreed. Instead, it focused on the percentage of the stamps that had been sold but never used. Those stamps were pure profit for the postal service, and as such, it should pay a royalty on them… along with the $5,000. Davidson was awarded a total of $3.55 million.

USPS assures that it has put safeguards in place to prevent this type of thing from happening again in the future. But if the price of postage goes up in the near future, perhaps we’ll know why!

Versace is Sued by No Fixed Abode

Fashion house Versace was recently sued for trademark infringement by a much smaller brand. (Yes, this might sound like the opposite of what you’re used to hearing.)

Streetwear brand No Fixed Abode claims it has been using a lion doorknocker emblem as its logo since the company began in 2013. Principal Emma Mann alleges that she previously alerted Versace to its infringement of her common law mark. After her application to register the mark was granted by the European Union Trademark Office, she brought suit in the British High Court.

No Fixed Abode is seeking injunctive relief banning Versace from using its own lion doorknocker image, along with monetary damages. Yet the ubiquity of this symbol, the newness of the registration, and the young age of the streetwear brand suggest that it may face an uphill battle.

Will Versace fight it out? Settle? File a counterclaim? Time will tell!

The EU May be Stepping Up its Battle Against Silicon Valley

The EU is continuing to regulate the role of American tech giants in their society. Fresh on the heels of the General Data Protection Regulation (known as the “GDPR”) coming into effect, a committee within the EU Parliament has just voted to strengthen copyright laws.

The new restrictions were suggested by the European Commission two years ago and propose making online platforms more accountable for their content. (This is a huge contrast with American law. The federal Digital Millennium Copyright Act actually specifies that online publishing platforms are frequently not liable for their content.)

Two aspects of the proposed law are particularly controversial. One provision would require search engines to pay publishers for using their news snippets. The other pertains to sites with a lot of user-generated visual content like YouTube, Instagram, and eBay. Those sites would be required to use a filter to prevent users from uploading copyright-protected materials without having a license.

Copyright holders are in favor of the proposed rules. Of course, they want to be compensated for their content. But they also say the rules will contribute to a better quality internet with more accurate information.

The Civil Liberties Union for Europe and others who are opposed argue that the rules will violate free speech. One prominent politician has vowed to challenge the rules and request a vote in Parliament.

Do You Have Questions About Your Intellectual Property Rights?

Our firm focuses on intellectual property and entertainment law and would be happy to discuss your matter with you. Contact us at (561) 953.9300 or visit us online at http://www.lomnitzerlaw.com to schedule your free consultation.

 

 

IP Case Roundup: International Edition

Dr. Dre, Dr. Drai, and What It Takes to Trademark Your Name

At the intersection of branding, marketing, and commerce is trademark law.

These are generally corporate concepts – and so, understandably, most people think of trademarks as something that applies to companies.

But what happens when an individual is the company or brand? Can a personal name be trademarked?

Yes, with limitations.

If you want to secure a trademark for your name, you need to be using it in commerce, either directly in connection with providing goods and services, or in the advertisements for them. At the very least, you need to be actively planning to use it and can demonstrate that intent.

In other words, you can’t simply apply for a blanket trademark that prevents others from using your name across the board.

For example, George Foreman has a number of trademarks. One of them is for meat and poultry. If someone comes along and starts selling beef jerky under George Foreman’s name, that might be deemed infringement. But suppose George Foreman sues someone for selling school supplies under his name. Now he has a weaker case, because he doesn’t have a registration that covers those types of products.

Further, consumers wouldn’t necessarily assume that the school supplies were affiliated with George Foreman, the boxer and grillmaster. To the contrary – school supplies might seem like a strange product line for him to get into, given the other types of products he sells.

So to register your name, you need to do it for specific goods or services affiliated with you personally. And there needs to be a connection in the mind of the consumer between you and your product(s).

Basically, for George Foreman to trademark his personal name for barbecue grills, there needs to be demonstrable evidence that when people hear his name, they think of grills.

If you think being a celebrity might help with all of this, you’re right. Fame makes it easier to build the case that people associate you specifically with your product or service. Of course, there is no absolute rule for how well-known you have to be.

So how do these principles play out in real life? It would be reasonable to think these cases generally go the celebrity’s way, to give them maximum control over their own brand. Yet a few recent examples show that’s not how it always goes.

  • Dr. Dre vs. Dr. Drai

In late 2015, ob/gyn Draion Burch, also known as Dr. Drai, filed his application to trademark that nickname. Dr. Drai has appeared on television and written books. He sought to trademark his name for his books, plus videos, podcasts, speaking services, and more.

Enter Andre Young—better known worldwide as Dr. Dre. When the rap producer/businessman got wind of Drai’s trademark application, he filed a complaint with the Trademark Trial and Appeal Board (“TTAB”) to block the registration.

His rationale was that the names, which sound identical, would lead to consumers being confused about the source of the services. He argued that the types of goods and services Dr. Drai intended to sell were associated with the entertainment industry in which Dre himself is a well-known figure. He also alleged that the doctor was trading on the goodwill of Dre’s name.

Dr. Drai claimed that consumer confusion is unlikely, given that he’s a medical doctor and Dre is a “doctor” in name only. Moreover, the reason he chose the name was that it’s his given name.

Finally, Dr. Drai argued that any affiliation with Dre would actually be detrimental to his own brand. As an ob/gyn who is part of the LGBT community, he asserted that wouldn’t want to be associated with some of Dre’s misogynistic and homophobic lyrics.

The TTAB sided with Dr. Drai and dismissed Dre’s complaint. Dr. Drai’s trademark application will continue making its way through the US Patent and Trademark Office (“USPTO”).

  • Steve Jobs, Fashion Brand

A pair of Italian brothers were surprised several years ago to find out that Apple hadn’t trademarked co-founder Steve Jobs’ name. So they did what any enterprising young entrepreneurs would do.

They started a clothing company called “Steve Jobs” and registered their own Steve Jobs trademark.

Needless to say, Apple didn’t appreciate the shout-out to its late leader—especially given that the logo is a “J” with a bite taken out it and a leaf accent. The company sued…

And lost.

Late in 2017, the EU’s Office for Harmonisation in the Internal Market found that Steve Jobs, the clothing brand, doesn’t infringe on any of Apple’s marks. After all, the letter J isn’t an apple itself, but a letter.

The company reportedly makes bags, jeans, and t-shirts. But the brothers say they intend to expand into other products—including, possibly, electronics. Such a move into Apple’s terrain would likely prompt a fresh trademark complaint. For the moment, however, Steve Jobs is sticking to clothing.

  • Kanye West’s Trademark Lapse

Kanye West has been known as Yeezy for years. Which is probably why the Chinese firm Fujian Baby Network Technology Co. (“FBNT”) recently decided to try to trademark the term “Yeezy Boost” – the name of a sneaker designed by West.

Apparently West had let some of his trademarks lapse. Noticing an opportunity, FBNT applied last year to register the mark for clothing.

But FBNT had everything going against it. Trademark law isn’t just about first registration. It’s about a reputation you’ve built, and a brand. West has called himself Yeezy since at least 2009, and he designed clothing and shoes under that name for several years before FBNT applied for the mark in the same category. There’s a strong connection in the mind of the public between West and the word “Yeezy.”

FBNT seems to have seen the writing on the wall. Rather than enter into a protracted legal battle that it would be likely to lose, the company abandoned its attempted registration of the mark.

  • Are You Looking to Trademark Your Name?

Are you thinking about trying to trademark your personal name, or anything else? Our firm focuses on intellectual property and entertainment law and would be happy to discuss your matter with you. Contact us at (561) 953.9300 or visit us online at http://www.lomnitzerlaw.com to schedule your free consultation.

Dr. Dre, Dr. Drai, and What It Takes to Trademark Your Name

Defamation and Multiple Infringements: Recent Notable IP Lawsuits

We mentioned last month that the law can sometimes be wildly surprising and unpredictable.

Realistically, that doesn’t happen too often.

A lot of cases are resolved outside of court, decided on procedural grounds, or otherwise disposed of. So case law often changes slowly, particularly when it comes to certain types of law that are well settled.

But the fact that many disputes don’t end in trial doesn’t mean there are fewer cases. There will always be parties with something to disagree about.

Here are a few cases that have caught our eye over the past few months:

  • Apple lost a long-running patent infringement lawsuit… for now.

It’s nothing new for Apple to be involved in patent litigation. When you’re a tech company that big, it’s just part of a doing business.

But what some may find surprising is for Apple to be on the losing end of this particular suit. After eight long years of litigation, Apple was found guilty of infringement. At the heart of the dispute are four patents for related to FaceTime and iMessage owned by plaintiff VirnetX.

If you haven’t heard of VirnetX, you’re in good company. It’s not a well-known name like, say, Samsung.

VirnetX is a holding company that purchases patents and then uses litigation to assert or defend their rights related to those patents. For these types of companies, litigation is often their only source of income.

These businesses tend to have a bad public image. But they’re perfectly legal, and they’re often highly profitable. Case in point: Apple has been ordered to pay VirnetX more than half a billion dollars. $502.6 million, to be exact. And this isn’t the first verdict VirnetX has won against Apple.

Of course, the money is just a drop in the bucket for Apple, which made $20 billion in profit the first quarter of this year alone.

Though the money might be a moot point altogether. Because there’s a chance the verdict could be overturned…

There are a couple of relevant cases currently pending before the US Court of Appeals for the Federal Circuit, the court that hears all the patent appeals. In those cases, the Patent Trial and Appeal Board has said VirnetX’s patents are invalid.

It’s hard to imagine Apple won’t appeal on that basis. And if they win an appeal, Apple won’t need to pay anything.

And so the saga will likely continue…

  • Nikola sued Tesla, and their namesake would probably feel conflicted.

In a lawsuit that sounds either fated to happen or like a bad punchline, Nikola sued Tesla for patent infringement. The two companies have more in common name than just their name inspiration. Nikola builds zero-emissions trucks and Tesla creates electric vehicles.

Nikola’s lawsuit says the cabin of the Tesla Semi truck infringes on the design of the Nikola One. The former filed its design patents in December 2015 and produced a prototype a year later. Tesla announced its truck in July 2016 and showed off the purportedly infringing design in April 2017.

Under the first-to-file patent application system, it would seem that Nikola is protected. At the heart of the suit will likely be the issue of whether the patents are invalid for some other reason. If they’re valid, the next question will be whether they were truly infringed.

Nikola is seeking $2 billion in damages. You can see the designs of the truck cabins side by side here.

  • Before going public, Spotify was hit with a massive infringement suit.

In a suit filed the day before the defendant’s stock went public, Wixen Music Publishing alleged that Spotify has improperly used more than 10,000 of Wixen’s songs. The publisher is seeking $150,000 per infringement, for a whopping $1.5 billion total.

This isn’t the first time Spotify has faced a suit of this nature. The company recently settled another suit for $43 million.

But $1.5 billion? Wixen says its catalog is worth 1% to 5% of Spotify’s service offerings, so it should get a reasonable share of the revenue. The catalog includes hip hop artists like Missy Elliott, alternative rock acts like the Black Keys and Rage Against the Machine, and classic rock artists like the Beach Boys and Janis Joplin.

Spotify claims copyright law doesn’t apply to music that is streamed. However, unlike other services like Pandora, Spotify’s music isn’t simply streamed. Because listeners can select the tracks they want to listen to, the stream is interactive.  That arguably requires different licenses, which Spotify has refused to pay for.

The suit pits a notoriously low-paying music subscription service against a publisher known for being a tough negotiator. It will be interesting to see what terms the parties end up coming to.

  • Olivia de Havilland appealed her loss in her defamation suit.

101-year old actress Olivia de Havilland has appealed her loss of her suit against FX Networks to the Supreme Court of California. A mainstay during the golden age of Hollywood, de Havilland had sued over the miniseries “Feud,” a fictionalized story about the rivalry between Joan Crawford and Bette Davis.

In her complaint, de Havilland claimed she was inaccurately portrayed in the miniseries. The state appellate court, however, determined that the show’s creators were allowed the artistic license to embellish whatever was true historically.

On her behalf, de Havilland’s lawyer argues that the Court of Appeal opinion “rewards the unscrupulous and will put those who investigate and seek to tell the public the truth at an economic disadvantage.” Moreover, the opinion infringes not just on the right of de Havilland to a trial by journey, but also on the right of others in similar situations who may not be celebrities.

No word yet on whether California’s Supreme Court has agreed to hear the appeal.

Unsure about your legal rights? We can help.

Do you have questions about copyright, trademark, or patent law? Our firm regularly handles both transactions and disputes around intellectual property and other civil matters. To learn how to protect your IP, visit us online, or call 561.953.5300 for your free consultation.

Please note: this blog is intended to provide general information which should not be taken as legal advice.

Defamation and Multiple Infringements: Recent Notable IP Lawsuits

Copyright Law’s “Blurred Lines” Will Remain That Way

Every once in a while, the law can be wildly unpredictable and interesting.

Not necessarily in a good way… but interesting nonetheless.

As is the case with the verdict in Robin Thicke and Pharrell Blurred Lines appeal. Though the verdict is bad news for a lot of music creators, it’s an interesting change in the application of the law.

But that’s not all that’s going on in the world of intellectual property news. There’s an interesting new case we’re keeping an eye on as well.

Details on everything below.

“Blurred Lines” Verdict Upheld, Leaving Questions in Its Wake

It was the verdict one expert and his colleagues were so sure would be overturned, they were counting the days waiting for it to happen…

But then, it didn’t.

The music industry was shocked three years ago when Robin Thicke and Pharrell Williams were found to have infringed Marvin Gaye’s “Got to Give It Up” in their 2013 hit “Blurred Lines.”

And it is now shocked again to find the verdict upheld in a 2-1 opinion issued by the Ninth Circuit appellate court. (You can download a copy of the 89-page verdict here.)

As we explained at the time of the lower court’s ruling, this case was a watershed moment because it wasn’t about infringement of a lyric or a melody. Rather, it was about the tone and feel of the song—the overall sound, with its recognizable cowbell and party vibe. These elements aren’t typically copyrightable.

As we also talked about when the verdict came down, Gaye’s hit was released in the mid-1970s, right around the time there was a major change in copyright law. Thicke and Williams appealed on the basis of that change in the law. They argued that the jury considered evidence it shouldn’t have been presented with—and as result, that evidence impacted the outcome of the case.

The appellate court took care to note that its decision was purely procedural, disappointing industry watchers who wanted the case’s substantive issues addressed. As Judge Smith wrote for the majority, “[o]ur decision does not grant license to copyright a musical style or “groove”… Rather, our decision hinges on settled procedural principles and the limited nature of our appellate review.”

For that reason, some say the outcome of this case doesn’t really change copyright law and won’t have much impact on future cases. The Gaye family’s lawyer agrees, pointing to a 1994 suit the Isley Brothers brought and won against Michael Bolton. That case was also supposed to be a landmark case but didn’t end up triggering the expected wave of lawsuits.

Yet many lawyers and forensic musicologists (a type of expert relied on in the Blurred Lines case) say they’ve already seen more cases, and faster settlements, since the “Blurred Lines” verdict was issued in 2015.

Industry watchers are hoping Thicke and Williams seek an en banc decision (where the entire Ninth Circuit court considers the case, rather than just a three-person panel) or appeal to the Supreme Court so this case can be decided on the merits. But in either event, there’s no guarantee the court will grant the request.

So for now, the 2-1 appellate decision stands. Even though one judge strongly dissented, pointing out that “[W]hat the majority overlooks is that the two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.”

Now, Here’s Something Ironic

Do you remember Robin Thicke’s performance with Miley Cyrus at the 2013 MTV Video Music Awards?

When “Blurred Lines” was #1 on the music charts, the #2 track was Cyrus’s “We Can’t Stop.” At the MTV awards, the two performed a rather raunchy mashup of these songs.

As we all know, Thicke was sued for his song—and as it turns out, now Cyrus is being sued for hers.

Plaintiff Michael May asserts that Cyrus’s lyric “we run things / things don’t run we” is a misappropriation of his 1988 lyric “we run things / things no run we.”

Unlike the “Blurred Lines” lawsuit, the musical tracks at issue don’t sound alike. (You can judge for yourself here.) The point of contention is just the lyric. May estimates that his contribution to the success of Cyrus’s song is worth $300 million. He’s seeking an injunction to future sales and performances of “We Can’t Stop.”

And Here’s a Case that Seems Ironic But Isn’t

On a different note, here’s a case that at first blush seems ironic…

But really isn’t at all.

Tinder (or more specifically, its parent company Match) is suing Bumble, and Bumble is countersuing.

If you don’t know what those two companies are, let’s just say that one online dating company is suing the other.

Now, Tinder and Bumble both use “swipe left” and “swipe right” technology to connect (or reject) other members. The big difference is that on Bumble (the newer company), for heterosexual matches, the interface requires any conversations to be initiated by the woman.

It seems cut and dried that if Tinder came along first, Bumble is infringing.

But it’s not that simple. Here’s the backstory with these two companies.

Bumble founder Whitney Wolfe Herd was a co-founder of Tinder. She founded Bumble in 2014, the same year she left Tinder and sued that company for sexual harassment. Though Match denied her allegations, it paid Herd to settle the suit.

In 2017, Match offered to buy Bumble, but Bumble turned down the offer, citing the $450 million price as too low. So Match requested confidential marketing information and financial information, purportedly to raise its bid. After raising its offer, Tinder dropped its bid lower again, and negotiations fell apart.

Tinder announced that it would be adding the same woman-controlled feature to its app, and at the same time initiated suit against Bumble. The complaint cites infringement of two patents; infringement of Tinder’s “swipe” trademark, the application for which is currently on hold with the United States Patent and Trademark Office; and theft of trade secrets by two former Tinder employees who now work for Bumble.

But Bumble isn’t just playing defense. The company first published an open letter positioning it as the underdog in a David-and-Goliath style battle. Then it countersued for fraud and theft of trade secrets.

Bumble alleges Tinder is trying to devalue Bumble in the eyes of other potential financial suiters. Moreover, says Bumble, Tinder was already planning to sue Bumble when it sought confidential company information under the guise of raising its offer price.

One thing is almost certain: with this case just heating up, we’re sure to hear more surprising allegations between the parties if they don’t settle quickly.

Never Mind the Drama – We Can Help

You’ve already seen that intellectual property law can be dramatic.

It can also be confusing.

If you have a question about entertainment law or intellectual property law, then contact us for a consultation. It’s free, and there’s no obligation.

Our firm regularly handles both transactions and disputes around copyrights, trademarks, and patents. To learn how to protect your IP, visit us online, or call 561.953.5300 to schedule your complimentary appointment.

Please note: this blog is intended to provide general information which should not be taken as legal advice.

 

Copyright Law’s “Blurred Lines” Will Remain That Way