A Legal Blog by Aaron | Sanders, PLLC

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

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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Implied License Saves the Day (But it Doesn’t Always)

Implied Licenses Are a Last Resort

In the day-to-day counseling about copyright matters, this is perhaps the most common fact pattern, and it’s surprisingly sticky. Company X has hired creative firm Y to create something for it. “It” could be almost anything: computer software code, a logo design, promotional copy, a website, packaging, a photograph—anything that you might want to outsource rather than develop in house.

Normally, when you hire somebody to make you something, you own the final result. If you hire an interior designer to pick out and configure appropriate furniture for your office, you own the furniture once you buy it—and the particular configuration of furniture that your designer recommended. Not the interior designer, and not the furniture manufacturer.

Hiring (Creative) Guns

But creative works are different. By default, the copyright in a work belongs to the creator, not the commissioning party. There are only two exceptions to this. First, if the creator is your employee, and made the work in the scope of her employment, then you are the owner.

But didn’t we say that we had outsourced the work? That means our situation can’t fall in this exception, right? Not exactly. It turns out the law cares much more…

Want a Mercedes? We got lots of 'em! Credit: Diego Delso, Wikimedia Commons, License CC-BY-SA 3.0

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I Need a Copyright License for My Personal Virtual Island?

Yes, if You Hired Someone to Design it for You.

Remember when Second Life was all the rage? I’ll admit that my memory is a little hazy, but I swear it was a huge deal a few years ago. Anyway, it’s still around, with a new slogan: YOUR IMAGINATION, YOUR WORLD.* If you’re not familiar, Second Life is an interactive virtual world that emphasizes the creation of virtual lands, complete with topography, buildings, etc. Subscribers operate avatars that may move through and interact with these worlds.

* Judging from this promotional video: ALSO BOOBS. Seriously.

Subscribers can also purchase virtual land and “terraform” it—i.e., give it mountains, forests, buildings, beaches, caves—to their liking. These lands can be private—i.e., cut off except for those specifically invited—in which case they’re called “islands.”

In this post, I’ll be discussing a recent decision in a lawsuit about whether terraformed virtual “islands” are copyrightable. More practically, the lawsuit is an object-lesson how badly things can go when copyright is involved in what appears to be “just a business transaction.”

Prelude to an Accidental Copyright Dispute

A teacher (we’ll call her the Teacher) working for a particular school district (we’ll call it the District) got the idea that these…

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Rick’s Copyright Course Final Exam: Part 2.5 of 3

Part III, No. 1: Tattoos, Video Games and the Quasi-Fallacy of “Innocent Infringement”

Thanks for reading so far. If you’re just joining the discussion, I’m posting the final exam I gave to my Vanderbilt Copyright Law class last term, with annotations about what I was looking for in the answers and some additional notes about how students answered. In the first part, I explained the perfectly good reasons why I made the exam to beastly to grade (and to take, I’m sure!), and set forth the annotated Part I of the exam (short answers). In the second part, I basically just set out the Part II, which consisted of short essays.

I was going to post Part III of the exam as one long post, but it’s really too much, since it consists of two long essay topics. The fact patterns are long, and there’s a lot to annotate. So I’m splitting the two long essay topics into two posts.

One of the main things I was testing with the long essays, in addition to analytical ability, was nerve. Copyright law is often counter-intuitive, and you have to trust what you know over what your gut is telling you.* In Essay No. 1,…

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