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!!

 

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