A Legal Blog by Aaron | Sanders, PLLC


Is it Fair Use? Photography and Creative Commons Edition

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Does Distributing a Work Under Creative Commons Mean That Your Work Has No Economic Value?

A professional photographer finds a political website has used his photographs of celebrities in concert to show that the celebrities agree with the website’s viewpoint. He licensed the photographs under Creative Commons, but the website violated the terms. Can the website escape under fair use?

The plaintiff is a photographer. He took this photograph of Kenny Chesney performing in concert:

And this photograph of Kid Rock performing in concert:

Although the plaintiff is a professional (which is evident from the quality of the photography), he decided to upload these photographs to Wikimedia under the Creative Commons attribution license (the “CCL”). Anyone may use the photographs for any purpose, without payment of any kind, so long as the photographer gets credit for it. The photographer says he uses CCL for marketing purposes and is, thus, valuable to him.

The defendant is non-profit that promotes a certain religious-political belief. I’m not going to tell you what it is because it’s irrelevant. The non-profit wanted to tell the world, through its website, that Kenny Chesney and Kid Rock also share this belief. To make the webpage look better (or perhaps more…

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If Goliath Goes After David in a Copyright Case, Does it Matter that David Is a Cheater?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

How Far Should a Publisher Go to Stop Cheating in a Massively Multiplayer Game?

How I wish I had time to play computer games. Heck, how I wish my children had time to play them (other than Minecraft, of course, which remains very popular with my younger child), because then I could play computer games with them. The other day, I wondered out loud to my elder child whether she’d like a Nintendo “Switch,” and she sort of shrugged. Between homework, orchestras, role-playing games, horror films, bad movies and death metal, who had time for computer games, Dad? I was a little crushed, but I take her point.

But, hey, there’s always the law of computer games. And, hey, this case involves the Digital Millennium Copyright Act (DMCA), one of my favorite laws. And, hey, this case also involves a David slinging back at Goliath, which looks like about 90% of my practice.

But first, some sympathy for Goliath. The computer game in question is Fortnite by Epic Games (that’s your plaintiff). It’s a massive, multiplayer shoot-em-up. Imagine dozens of players dropped in a terrain, each trying to pick each other off with interesting guns, explosives, etc., with the last one standing…

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Netflix sends hilarious cease and desist letter. But should it have?

Tara is an experienced Nashville intellectual property lawyer with particular interests in managing international IP portfolios and helping start-ups develop IP assets.

 

It has been a welcome development in the art of cease-and-desist and demand-letter writing lately: Rather than a stern warning with paragraphs of statutory citations and threats of “treble” and punitive damages to the moon, companies have had their counsel user a lighter touch, cajoling with charm rather than terrorizing with money damages. Recall the lovely letter received by the author of the book “Broken Piano For President,”** which used a Western saloon-style scroll that Jack Daniels thought was remarkably reminiscent of the scrolls on the label of a bottle of its whiskey.  “We have to be diligent,” said Jack Daniels, as if the letter was a chore that had to be carried out by whichever lawyer drew the short straw. “We’re sure you didn’t mean it,” and all we’re asking is that you “change the cover design when the book is re-printed” (because we’re SURE you’ll make it to re-print, buddy….) The letter went viral, a beacon of a new day in C&D letter writing style. I’ve even written a few of my own cheeky letters since then.

The latest of these is a letter from Netflix to the owners of a bar in Chicago who, in honor of…

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Copyright Law Can Spice Up Anything: The Surprising Scope of Copyright Protection

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

The Thick and Thin of Copyright Protection

Copyright lawyers love tell you that copyright law is all about encouraging creativity because that makes it seem that we’re performing some sort of socially useful activity. We love to point to paintings, novels, movies and music. Without the legal monopoly that copyright law confers on “creators,” these wonderful things wouldn’t be created. Or, at least, they wouldn’t be as good.

And—you know what?—sometimes this is even true! There are lots of cases about music and movies and even dancing!

But you know what else is protected by copyright law? A catalogue of dental procedures. Lists of collectable cards. Medical education brochures (e.g., Gastroesophageal Reflux Disease: Understanding Your Health.) Private placement memoranda.

What’s a private placement memorandum? So glad you asked. Before you can ask folks to give your enterprise money, you need to provide them with certain information so they can make an informed decision. If you’re providing this information because you’re offering to sell equity or debt, and the transaction is “private,” then you’ll be expected to provide a “private placement memorandum” (or “PPM”). PPMs are not “creative,” in the usual sense of the word. They are designed to inform. Much of the information…

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When Implied Licenses (Don’t) Attack: Copyright Licensor’s Scheme to Ambush His Licensee Goes Terribly Wrong

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Today’s Lesson: Don’t Be a %$*!#

A little bit of legal knowledge can be a most troublesome thing.

Readers of The IP Breakdown know that implied copyright licenses are best avoided, particularly if you’re the licensee, though they’re usually considerably better than, well, no license. There are several problems with implied licenses. They’re (by definition) not exclusive, which means your competitors can use the work in question. The scope of the license is undefined. You don’t know what you’re allowed to do with the work in question until a court issues a ruling, by which point—well, things are already in a bad way.

Implied licenses aren’t great if you’re the licensor, either. The lack of definition makes it harder to enforce the license’s terms. You say to your licensee, “Stop doing that or else!” or “Pay up!”—and your licensee says, “Where does it say that?” or maybe even “Come at me.”

Still, before you get too deep into these messy, slippery weeds, you might want to consider a more fundamental legal principle: don’t be a %$*!#. Nobody likes a %$*!#.

The law tolerates a lot of not-nice behavior: sharp-elbowed competition, turning a tenant out of a space with little notice, burdensome contractual provisions that…

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