Monthly Archives: March 2012

Trayvon Martin Case and Intellectual Property Issues

This case has been heart-breaking on so many levels, no matter your position on the social issues that are implicated. Whether you believe Zimmerman  acted in self-defense or created a situation where someone’s beloved son was killed while minding his own business, carrying a Snapple and some Skittles, there is no question that many lives have been destroyed, careers ruined, and, most tragic by far,  a child with a promising future is dead.  It is not for me to decide what happened in this case because I wasn’t there and I don’t know. I have friends with different views on Zimmerman’s actions and motives, but all I can think about is Trayvon’s parents, and the parents of other young African-American boys or men, who live in  fear that the same thing could happen to their child. I have no answers and nothing but my heart-felt sympathies to offer to these families.

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Copyright Fair Use – Is it or Isn’t it?

As an intellectual property lawyer, I often get questions from clients that have received a cease and desist letter alleging copyright infringement. One important defense to copyright infringement is the “fair use” defense, in which you basically say, “Okay, I copied it, but the use I made of your copyrighted material was legal.” Fair use is a very fact-intensive analysis and you often can’t know whether something was actually fair use or not until a judge or jury makes such a determination after trial. Because most people cannot afford to go the distance to determine the viability of the defense, the defendant who has used the copyrighted material often settles or removes the offending material (if possible) rather than litigate. In order to avoid being accused of copyright infringement altogether, it is helpful to understand the rules of fair use, which are discussed very comprehensively  in this resource from the Stanford University Libraries. I have found it be very useful, particularly the summary of fair use cases in Part C. I have also written earlier on this topic, here and here. I hope you find these  resources to be useful guidance on this complicated and fact-intensive issue, which can otherwise be a complete roll of the dice. And, I hope you are never in the position of having to convince a mad copyright holder that your use was fair.

Here’s a First – a Heart-Warming Trademark Story

Actor Stephen Fry has confirmed that he and Sir Ian McKellen will pay a licence fee so that a Southampton pub in  England can continue to use the name they’ve traded under for twenty years—The Hobbit.

The pub was threatened with legal action by Saul Zaentz Company (SZC) of Hollywood, which accused it of infringement.  SZC owns the worldwide rights to several brands associated with author JRR Tolkien, including The Hobbit and The Lord of The Rings. Although half this article talks in terms of “copyrights,” I feel certain  it is really talking about trademark infringement.

In an effort to get SZC to back off, the pub’s supporters set up a Facebook page, which has more than 57,000 supporters. Sir Ian, who plays Gandalf in the Lord Of The Rings films, described the  film company’s actions as “unnecessary pettiness” and Fry said it was “self-defeating bullying”. The actors began tweeting about the situation and Fry ultimately offered to pay a licensing fee so that the Hobbit could continue to operate under that name.

This case is another interesting example of the little guy using the power of social media to make a trademark “bully” back down. However, as an IP lawyer, I am sympathetic to the mark owner’s plight–you either defend your mark or you lose it. However, unless the SZC folks had used the mark on a pub, I’m not sure that any confusion would be likely. At any rate, you will still be able to knock down a cold Frodo at The Hobbit after a long day in Southhampton, and that’s a good thing in anybody’s book.

Joel and Victoria Osteen Win Dismissal in Copyright Infringement Case

Evangelists Joel and Victoria Osteen get a temporary reprieve in the copyright suit brought against them by writer of the song “Signaling Through the Flames,” courtesy of every defendant’s best friends, Twobley and Iqbal. The Texas district court granted their motion to dismiss because the plaintiffs failed to allege facts showing that the Osteens had a financial stake in the infringing activity and personally supervised the infringing conduct. The plaintiff was given leave to amend so the Osteens will undoubtedly have to face this issue again.

Oprah Wins Dismissal of Trademark Lawsuit

trademark infringementOprah artfully sidestepped a  trademark lawsuit when a New Jersey district court held that she made fair use of “Own Your Own Power” on the cover of her magazine when she used the phrase as a headline and a title for an area of her website. The use of the descriptive phrase in conjunction with her well-known trademarks was fair use and did not infringe the plaintiff’s “Own Your Own Power” mark, registered for “a personal brand of self-awareness and motivational communications services nationally.” Because the court declined the invitation to exercise jurisdiction over the plaintiff’s state law claims, Oprah carried the day on all issues.

U.S. Supremes Remind Us That You Can’t Patent the Laws of Nature

On March 20, 2012, the Supreme Court issued a unanimous decision, authored by Justice Breyer, in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The court held that the process patent that Prometheus Laboratories had obtained for correlations between blood test results and patient health is not eligible for a patent because it incorporates the laws of nature. The Court found that the claimed method merely restated a law of nature, specifically the correlation between the concentrations of certain metabolites in the blood and drug effectiveness or toxicity and, thus, it was not patentable subject matter under Section 101 of the Patent Act.

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Twitter Supoenas and the 99%

Twitter and social networking accounts, expectation of privacy?Prosecutors have subpoenaed the Twitter records of Jeff Rae, an arrested Occupy Wall Street protester, and four others, seeking account information and tweets sent around the time the protests heated up last fall. Rae was arrested during a mass protest on the Brooklyn Bridge in October. The subpoena seeks all of Rae’s tweets from Sept. 15 — two days before the Occupy movement began in downtown Manhattan — through Oct. 31, along with account and contact information for Rae.

 Based on the subpoenas filed in another protestor’s case, prosecutors appear to be looking for evidence that would prove the defendant’s state of mind at the time of the alleged crime. The protestors were primarily arrested on misdemeanor changes such as blocking traffic, disorderly conduct or defying police orders. Many of the protestors have argued that they did not realize they were defying police orders but prosecutors are trying to show that the defiance was knowing and deliberate.

 Rae plans to fight the subpoena, stating “I was a little bit blown away,” Rae said. “It’s interesting that in places like Egypt our leaders applaud people for using Twitter and social media for their movements. Here, I’m being subpoenaed for using social media.” He said his lawyer would file a motion to quash.

 A special Manhattan criminal court has been set up to handle Occupy cases. Many have been resolved through a type of conditional dismissal that wipes the charges away if the defendant stays out of trouble for six months, but hundreds of protesters have chosen to move ahead with trials.

 I think it’s pretty much a sure bet that prosecutors will gain access to these twitter accounts. Assuming they have probable cause, it should be no different that obtaining a defendant’s phone records or bank account information. In fact, I would think one would have even less of an expectation of privacy in one’s tweets than in one’s phone or banking records. The purpose of twitter is to shout out your thoughts to the world and connect with other like-minded people, wherever they may be. Except for private messages (which the prosecutors say they are not seeking), anyone and everyone can see what you are tweeting. Consequently, the privacy expectation is practically non-existent in the sent tweets. The account information is a closer question but courts have recently held that this information is also available to prosecutors because the defendant loses his expectation of privacy in the information once it is shared with a third party, i.e., Twitter. So prosecutors will undoubtedly get the account information as well.

 Check out this article on Law360 where my law partner Kathryn Walker and I were quoted on this issue yesterday. We both feel that the information is likely discoverable by prosecutors. What do you think?

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