Prosecutors and law enforcement can subpoena all your activity on Facebook and Twitter.

Two separate cases show that prosecutors and law enforcement can subpoena all your activity on Facebook and Twitter. The first case comes from the Boston Police Department, who subpoenaed the Facebook activity of the “Craigslist Killer” and was handed over a 70-page print-out of extreme details – every post, picture, “like”, login, friends, and the list goes on. Another case comes from a judge in a recent decision against an Occupy Wall Street protester holding that the protester’s posts on Twitter can be subpoenaed by police. Prosecutors and law enforcement can therefore turn over this type of information to journalists and other media sources, and can use the information as evidence.

In the case of the “Craigslist Killer,” suspect Philip Markoff’s entire Facebook account was handed over to the Boston police without much question. But some courts have ruled that Facebook and other social networking sites are providers of Electronic Communication Services and Remote Computing Services under the Stored Communications Act, which gives some protection from disclosure. Even Facebook itself states in their guidelines that a warrant is required before any disclosure of information from any account. But the Boston police did not have a warrant for Markoff’s Facebook activity. Facebook handed it to them without much question or disagreement. Makes you wonder if your Facebook activity could be handed over so easily to the police.

In the case against the Occupy Wall Street protester, the judge agreed with the prosecution’s argument that the protester’s Twitter posts were public and thus there was no privacy interest. The judge ordered Twitter, Inc. to hand over the Twitter activity of the protester.

Lesson in all this: be careful what you put on social media sites. It can come back to haunt you.

American Apparel settles legal dispute with Woody Allen.

Last year, Woody Allen brought a federal lawsuit against American Apparel. The clothing company had used an image of him from the movie “Annie Hall,” where he was dressed as a Hasidic Jew. American Apparel did not ask permission to use the image. Woody Allen claimed that American Apparel had misappropriated his public image and smeared his reputation. Today, American Apparel has settled the lawsuit with Woody Allen for $5 million.

American Apparel argued that using the image of Woody Allen constituted free speech because it was a parody. Woody Allen argued that the advertisement exploited his image commercially.  Before the settlement, American Apparel had plans to use very scandalous information about Woody Allen in the trial. Woody Allen’s current wife, Soon-Yi Previn, is the adopted daughter of Woody Allen’s former partner, Mia Farrow.  Woody Allen had an affair with Soon-Yi Previn before marrying her in 1997. American Apparel’s lawyer, Stuart Slotnick, was prepared to introduce this evidence into trial. Woody Allen stated that this evidence was being used only to “smear” his reputation and had “absolutely nothing to do with the case.”

American Apparel clearly misappropriated Woody Allen’s identity when they used his image for their advertisement. The right of publicity is the right of an individual (usually a celebrity) to control the commercial use of his/her name, image, likeness, or other aspects of one’s identity. The right of publicity is generally considered a property right. Thus, in order to use one’s name, image, or likeness, the owner must grant permission to the user, or they must agree on some contractual compensation. American Apparel used Woody Allen’s image without permission, and the use was commercial because it was an advertisement for clothes and merchandise from American Apparel. This is clearly a misappropriation of Woody Allen’s right of publicity.

American Apparel claimed that they had a defense to liability because the use was a parody, and thus protected by the First Amendment. Parody is a work created to mock, comment, and poke fun of the original work by means of humorous imitation. Thus, in order for American Apparel’s advertisement to be a true parody, it must have been created for the purpose of making fun of Woody Allen, his films, his characters, etc. But the advertisement was not created for the purpose of making fun of Woody Allen – it was made for the purpose of advertising clothes and merchandise sold by American Apparel.

To make this clearer, let’s compare two cases. In Cardtoons v. Major League Baseball Players Association, Cardtoons produced trading cards featuring athletes from major league baseball. Each trading card had a different major league baseball star, and were drawn in a silly and satirical way (hence the name “Cardtoons”). The court found in favor of Cardtoons’ defense of parody – the purpose of the cards was to mock and poke fun at the major league baseball athletes and the Association itself. Contrast this case with White v. Samsung. Samsung made a robot that looked and sounded like Vanna White (from Wheel of Fortune). The robot was made to advertise Samsung’s new VCR device. Vanna White sued for misappropriation of her identity. The court rejected Samsung’s defense of parody. The robot was made not to poke fun of Vanna White, but was made to advertise the VCR.

This case presents similar facts to White v. Samsung. Vanna White’s identity was used to sell VCRs just as Woody Allen’s identity was used to sell clothes and merchandise. It is clear then that if this case went to trial, a court would have likely rejected American Apparel’s argument of parody.

It is also important to note that American Apparel would fail the “transformative use test,” which is a test to determine whether there is a First Amendment defense to a right of publicity claim. Essentially what this test means is that the more “transformative” the use, meaning the more changes are made to the original work, the more likely there will be a First Amendment defense.

Here, American Apparel did not make any changes. They simply placed the still shot of Woody Allen alongside the company name. There were no significant additions anywhere and no “transformation” of the image, just a single still shot of Woody Allen dressed as a Hasidic Jew. It is likely that a court would find that American Apparel did not “transform” the use of the image.

On a final note, whatever scandal Woody Allen was involved with, his personal issues with lovers and marriage have no bearing on the commerciality of his image. Maybe it would have something to do with his “reputation” being on the line, and perhaps Stuart Slotnick wanted to introduce the evidence to show that Woody Allen already has a bad reputation, hence he cannot be “slandered” by what is already true. But that information has nothing to do with Woody Allen’s right of publicity, which was the real issue here. Introducing that information to a jury would have been prejudicial and completely irrelevant. It’s a good thing that the case settled.

American Apparel is well known for their risky and controversial advertisements, and this was just another example of how far they will go to push the envelope. It unfortunately cost them $5 million, but that is no deterrent for one of the biggest fashion companies in the world. American Apparel will continue to produce ridiculous and absurd advertisements (tailoring to the younger generations), and will most likely encounter legal trouble again in the future.

 

Want to know the basics on copyright law and how to avoid breaking the law?

Then read this great article that breaks down copyright law really well, and also offers steps to avoid breaking the law: How You’re Breaking the Law Every Day (and What You Can Do About It)

Derek Bambauer, Assistant Professor of Law at Brooklyn Law School, makes a similar argument to one I always make. Imagine you are a student studying for exams. You are in the library and you look something up in the encyclopedia. Bingo, you find the page that you need. You head over to the copy machine that is readily available in the library and make a photo copy of the page. You take the page home with you for further study. Technically, you just committed copyright infringement. But is the copyright police going to go after you? No! Because you took the page home with you for a personal use and the copyright holders of the encyclopedia would never find out that you made a copy of the book. (Unless they hunted you down like a fox, and that would be creepy.)

But now consider technological advances. Today, instead of making a physical photo copy and taking it home, you might make a digital copy and upload it to a public server that you can access easily. This makes it much easier for the copyright holders of the encyclopedia to come after you. (Just think, if you can access it easily, then they can too.) But there is no difference in the reason why you made the copy. You are still using the copy for studying purposes. The only difference here is that uploading the document on the Internet allowed the copyright holders to find you easier. So why should you be prevented from keeping that copy for studying purposes?

Copyright holders are becoming too draconian in protecting their copyright. There are two competing policies in copyright law: 1) provide incentives for authors’ to create works by protecting their intellectual property; and 2) keep certain information open and free for the public to use in order to “promote the progress of science and useful arts.” Even though some of us commit copyright infringement on a daily basis, most of the time we are doing it to further our education and knowledge. Engaging in conduct like making a photo copy of an encyclopedia is an accepted form of copyright infringement for that very reason, because it is generally understood to “promote the progress of science and useful arts.” By enforcing their copyrights too harshly, copyright holders are acting inconsistently with the true purpose of copyright law. Authors should certainly enjoy intellectual property protection for their works, but not to the point where the rest of the world cannot utilize the work in ways that further education and knowledge.

Linsanity, Kodak, Apple, Pinterest, and Megaupload’s Kim Dotcom

Jeremy Lin filed an application to trademark the term “Linsanity” on February 13, 2012. In light of his overwhelming success for the New York Knicks, “Linsanity” has become the most popular phrase in America. Several people tried to file a trademark application for the term, but too bad for them, Lin has hired Arent Fox to file the application on Lin’s behalf. (For those of you who don’t know, Arent Fox is a very well known national law firm.) Let’s just hope Lin can keep up the Linsanity so that his trademark doesn’t become worthless.

Kodak has a lot of patents, and they claim that Apple and HTC has stolen several of their patents. The US International Trade Commission has agreed to investigate Kodak’s claims of patent infringement. Kodak wants to block the import of Apple and HTC products. The most interesting thing I have to say about this is that my professor from my Trademarks course in law school is the current in-house counsel for Kodak. My fondest memory of him is when he walked into class with a tshirt that said “Khronic” in the logo of Kodak and asked the class: “So is this trademark infringement?” He looked so silly and goofy.

Apple loses a trademark dispute!!! Is it possible? Has Apple really lost a lawsuit? If you can’t tell yet, my sarcasm stems from the fact that Apple loves to sue anyone that dares get in their way, and I secretly dislike Apple for being so litigation-happy (but not enough to stop using their products). Wapple.net Ltd, a UK-based web developer, wins the trademark dispute against Apple. “Wapple” is a made-up word with no real meaning, and the web developer states the name is derived from the acronym for “wireless application protocol (WAP).” Apple is always too eager to sue everyone for trademark infringement. Although “Wapple” and “Apple” rhyme, the products are entirely different and the marks are conceptually very different. This decreases the likelihood of confusion, meaning consumers will not think Wapple is from Apple and vice versa. Plus, who doesn’t like to say Wapple? Heh, Wapple, what a funny word.

Pinterest, the popular app used in conjunction with Facebook, responded to copyright infringement allegations by enabling websites to bar the sharing of their content. Websites who don’t want their content “pinned” can enter a code which bars users from using Pinterest on their sites. I have mentioned in some previous blog entries that in copyright law the goal is to strike a balance between protecting people’s intellectual property and keeping certain information free and open to the public. It is important to protect the intellectual property of these businesses who don’t want Pinterest to be used on their websites, but at the same time, they are missing out on the great benefit that can be derived from Pinterest – it is a great tool for product advertising. In a way, they are shooting themselves in the foot by not allowing people to “pin” the products they like and share it with their friends, which is basically free advertising!

Kim Dotcom goes free!!! A New Zealand judge determined that Dotcom was not a flight risk and released him on bail. He is under house arrest and prohibited from using the Internet. Dotcom is facing the biggest copyright infringement lawsuit in history for his widely popular file-sharing platform Megaupload, which was shut down earlier this year by law enforcement. United States officials are calling Dotcom’s file-sharing website the most egregious form of copyright infringement in history. Yeah, they are so serious. The United States is in the process of filing an extradition request. If granted, Dotcom would face the copyright laws of the United States, which could present many problems for him. The United States courts would chew him out!!! Poor guy, he is just a chubby geek who wanted to live the life of a rockstar.

 

Is yoga copyrightable?

Bikram Choudhury has sued Greg Gumucio for copyright infringement. Yes, they are yoga instructors. It may sound weird that one yoga guru is suing another yoga guru for copyright infringement, since when most people think of copyright they think of music, books, film, art, and design. Bikram argues that his sequence of yoga positions fits within the definition of choreography. Under copyright law, choreography can be copyrighted as long as it is “fixed on a tangible medium of expression.” This means the choreography must be filmed, or drawn out – basically anything that puts it on a tangible medium. So now that we know choreography can be copyrighted, this leaves the question, is yoga choreography?

When we think of the common modes of choreography, we think of dancing. But yoga is not dancing, not even close. Still, Bikram argues that his sequence of yoga positions is choreography. Greg argues that yoga positions are within the “public domain,” meaning it is free for anyone to use. Yoga positions have been passed down for generations, which makes them uncopyrightable. Greg argues then, that yoga is not choreography and cannot be copyrighted.

In my opinion, I would agree with Greg’s argument and say that yoga positions are part of the public domain. If we allow Bikram to copyright his sequence of yoga positions, it would give Bikram too much leverage, and other yoga instructors would be in constant fear of a lawsuit. This creates a “chilling effect” – yoga instructors would stop holding classes for fear of liability. And we want yoga classes, because people love yoga! It is all part of striking that perfect balance in copyright law: we want to offer incentives for people to create, but we also want certain information to be free and open for the public because this promotes greater knowledge, better health, and innovation.

I am rooting for Greg on this one.

What do you think of when you see an Andy Warhol banana?

If you answered, “The Velvet Underground & Nico,” then you may be supporting The Velvet Underground’s claim of trademark infringement against the Warhol Foundation. The Velvet Underground has brought suit against the Warhol Foundation for licensing the image of the iconic banana to Apple for use on iPhones and iPads.

The Velvet Underground argues that it owns the rights to the image because it has become such a strong symbol for the band. As many of us know, Andy Warhol was a huge pop artist, and great friends with The Velvet Underground. He painted the image of the banana specifically for The Velvet Underground’s hit album. It seems then, that the image does belong to The Velvet Underground. But as in many things in life, it is not that clear cut.

The Velvet Underground believes it has the right to the trademark because of the “strong association” between the image and the album. Trademarks can be words, colors, images, and anything else that could serve as an “indicator of source.” Essentially, what The Velvet Underground is arguing then, is that the banana image serves as an indicator of source. When people see the banana image, they think of the album as the source. On the other hand, Andy Warhol owned the copyright to his work, and absent any evidence that he intended to relinquish his ownership of copyright, then it would follow that the Warhol Foundation owns the copyright to the image and could license it to Apple under copyright law. This presents quite the conundrum. What happens when two different bodies of intellectual property law yield two different results? Which argument will prevail?

This will be a very interesting case to follow. The outcome may show us which body of intellectual property law the courts seem to weigh more in favor. I wish I was working on cases like this!! They are so much fun!!

 

SOPA and PIPA may be dead, but ACTA is still a threat.

Early in January I attended the “geekiest” protest that activism has ever seen. I was interviewed by NYC’s The Gothamist while at the rally. SOPA and PIPA were threatening America’s freedom of expression on the Internet, and hundreds were quick to act. As everyone knows, there was a media blackout on January 18, 2011. Senators redacted their support for SOPA and PIPA one by one, until the bills were completely dead. There are talks of bringing them back to the Senate floor one day when they can “work out the issues,” but if it is anything like the two bills they tried to push early this year, I suspect the American people will engage in another geeky protest.

But there is still a worldwide threat of censorship, and ACTA is that threat. All over Europe, groups of people have come together to protest ACTA, an international version of SOPA and PIPA. A website dedicated to stopping ACTA was created: EUROPE STOP ACTA NOW.

Copyright law seeks to strike a balance between two competing policies. We want authors and artists to have incentives to create works, hence the formation of copyright law. Authors and artists can create their works knowing they will be protected from plagiarism and copying. On the other hand, we want certain information to remain free and open to the public. This is how we spread knowledge and aspire creativity and innovation. Finding that right balance is difficult. The motion picture and recording industries lean on the side of enforcing stricter copyright laws, and the tech geeks who are developing different software for P2P file sharing lean on the side of free information. Leaning too far on either side is disastrous, and I believe that SOPA, PIPA, and ACTA lean too far in favor of the motion picture and recording industries.

Copyright law was created to protect works, not to censor the freedom of expression. SOPA and PIPA purported to use copyright law as a means of censoring expression and free speech. Senators were dangling copyright law in front of our faces assuming we were ignorant and wouldn’t know any better, but too bad they didn’t expect we would see past their deceitful ways. In effect, if SOPA and PIPA were passed, our ability to go on the Internet would have completely changed. Now that SOPA and PIPA are dead, we must kill ACTA as well. The amazing feats of heroism and activism we have seen in the Middle East are due in part to the fact that the people had access to social media sites, such as Twitter, to spread the word throughout the region. Without access to a free and open Internet, the world will turn into China. And do we want to become like the Commies? Please no! I love my Facebook, Twitter, Instragram, Foursquare, and WordPress blog. How will any of us survive without them!

The fight is never over for free speech. I will be ready, with all my geeky knowledge and beautifully designed signs.

 

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