A Legal Blog by Aaron | Sanders, PLLC


Of Floods, Buses and Copyright Infringement: A Nashville Riddle

Implied “Transition Period” in Software Licenses? Don’t Count on It.

Here in Nashville, we have what might be called a so-so mass transit system. To be fair, Nashville’s layout isn’t very conducive to mass transit. It’s fairly spread out, the roads tend to meander, there are multiple commercial centers, those commercial centers aren’t always very easy to get to, and residential and commercial growth patterns have been in flux.

Still, Nashville has a bus system, the Nashville Metropolitan Transit Authority, which everyone calls the “MTA.” As you might expect, one of MTA’s goals is to make sure the buses run on time, which requires making sure the drivers are there to drive the buses, the correct buses are dispatched on the correct routes. It also involves monitoring how long the buses take between major stops. In 2007, MTA wanted a better system for communications, dispatching and tracking. It contracted with ACS Transport Solutions for this. ACS agreed to sell, install and configure all of the necessary equipment. This equipment required enterprise-level software to run it, and ACS also agreed to license the software to MTA.

For some reason, the software license was in an entirely separate contract called a “License Agreement.”…

May 2, 2010, Nashville, Tennessee. That's downtown in the distance. The MTA depot would actually be fairly close by, probably completely under water.

Read More»

Catch Downtown Fever! Why Trademark Ownership Disputes Are the Worst

Who Owns the Jelly Nailed to the Wall?

There are few legal holy messes like a dispute over trademark ownership. Sure, copyright and patent ownership disputes can be messy, but nothing like trademark ownership. And, sure, copyright ownership can be tricky, but it’s a walk in the park compared to trademark ownership. Here are some reasons why:

There can normally be only one owner of a trademark for a given set of products in a given market. Why? That’s because a trademark serves as a link between products and a single source. In contrast, copyrights and patents can have multiple owners.
But there can be multiple legitimate owners of trademarks for the same or similar products, if (a) they are geographically remote from each other AND (b) the later (“junior”) user isn’t on notice about the earlier use (which is often the case). Why? Because the point of a trademark is to prevent confusion, and there’s chance of confusion if different owners are far enough away from each other. Copyrights and patents, by contrast, automatically have national scope.
The owner of a trademark is the one who “actually uses” it for the products in the market. But often many hands are involved in…

WE WANT DOWNTOWN FEVER! WE WANT DOWNTOWN FEVER! (Even if we would have to go to a different club to see them?) By Asroma - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=6746532

Read More»

Lenz, the DMCA and Dancing Babies: Don’t Go Crazy, OK?

tl;dr Summary

Although the DMCA’s procedure for taking down allegedly infringing material is (ahem) nearly universally disliked. Rights holders can’t figure out why it’s so hard to take infringing material down, and consumers and service providers can’t figure out why it’s so easy to take obviously non-infringing down. Lenz v. Universal thus appeared a perfect test case for those who wished to clip the wings of the DMCA’s takedown procedure. When Universal saw Ms. Lenz’s video of her toddler dancing to “Let’s Go Crazy” in the background, it got the video removed. Although Ms. Lenz was able to get it put back up, she was angry enough to sue Universal under §512(f), which forbids knowingly representing that a work subject of a takedown notice is infringing. Her theory was that her video was so obviously a fair use, Universal’s takedown notice constituted a knowing misrepresentation. She knew, however, that she had a tough road, because at most all Universal had to prove was that it had a subjective belief that her video wasn’t fair use, a very low standard indeed.

At trial, she successfully fended off a motion to dismiss and a motion for summary judgment, in which Universal argued that…

This seismometer measures changes to copyright law, starting in 1909. The big disturbance is either the 1976 Act or possibly the Sony Betamax case. Note that it's been a while since the needle has moved significantly.

Read More»

Richard Prince Is a Jerkface, but Don’t Blame Instagram

If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in” the thing you posted.

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap…

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

Read More»

Jersey Boys! Why Sometimes it’s Better to Rent Than to Own Copyright

Four Seasons of Legal Pain

If you are of a certain age, when you’re old enough to be living on your own but young enough to be content with renting rather than owning your abode, you start to get pressure from well-meaning older folks, like your parents, that you really should be considering buying a place. It is always better to own than to rent, they say, as though that were a general rule. And, with real property, at least, it’s usually true.

With copyrights, though, sometimes you don’t want to be the owner—or, more precisely, you don’t want to be a part owner. This crazy Jersey Boys case shows why.

Jersey Boys is, as you probably know, a very successful Broadway musical about The Four Seasons, a music band that was simply huge in the 1960’s, especially the early 1960’s, before the Beatles came along. I’ve blogged about the musical, the band and Frankie Valli’s astounding falsetto before, in very special episode of Is it Fair Use?, so you can get some additional background there.

Ghostwriters Have Rights, Too!

There were, as you might guess, four members of the band. In the 1980’s, one of them, Thomas DeVito, wanted to write an autobiography.…

Jersey Boys really was a big hit, but a ghostwriter's widow might be owed a piece of it.

Read More»