Show notes

Warner Settles Suit Against Redbox; Agrees to 28-day Window | Digital Media Wire

Does a fair use argument exist for showing the fatal Georgian luger’s crash video? The International Olympic Committee was able to invoke the DMCA to take down the video from Youtube and other websites.

U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. – Jason Fischer

What about in other nations? “Fair Use” is a US Legal principle founded in the precepts of the 1st Amendment.. not applicable in other countries.

The IOC issued blogging guidelines for all “accredited persons” (that would include athletes) prior to the Olympics. See here for guidelines:

http://www.olympic.org/Documents/Reports/EN/en_report_1433.pdf

Olympic Athletes Can Tweet to Their Hearts’ Content | Citizen Media Law Project

Accredited persons are permitted to tweet/blog their personal expressions, but cannot connect their Olympic experience with advertising purposes, any exclusivity, or using the word “Olympic” in their website name. They may also not tweet/blog any sound/video from the games, photos of any closing/opening ceremony, medal presentation, or use the Olympic symbol. They may post photos where only they are pictured, but not involved in any of the above activities.

Colbert Report had a clever piece about the Olympics’ protection of their trademarks.

Hillarious! NBC paid $820 million for the exclusive right to say “Olympic Coverage.” Other exclusive words were: Winter Games and Vancouver 2010, as well as displaying the Olympic rings.

“Quadrenial Cold Weather Athletic Competition”

London 2012 trademark enforcement begins.

lhttp://www.travelweekly.co.uk/Articles/2010/03/18/33285/olympic-trademark-rules-shackle-travel-agents.html

London 2012, London 2012.com, Olympic(s) or the Olympic symbol may only be used by official Olympic sponsors, the London Organizing Committee warns. Travel agents are considering ways to promote/sell travel to London without saying, “Go to London for the Olympics.”

Is this taking trademark law too far? What about “nominative” mentions of the brand? Shouldn’t it be permissible to mention the FACT that the events are occurring at a specific time and place, and then to sell travel tickets, etc., for that period of time?

The Boxing kangaroo flag.

“Boxing Kangaroo” is viewed by IOC officials as a “commercial logo” BECAUSE it’s registered as a trademark (the logo was acquired from a receiver for a now-defunct commercial enterprise). IOC threatened to penalize Australian team for flying the flag, as a violation of their rules, but after some negotiations, Australia was permitted to keep flying its boxing kangaroo flag at the Olympic Village, because the mark is now a registered trademark of the Australian Olympic Committee. Not intended as a commercial activity… just about team spirit. Australian Olympic Committee will register this flag/logo as one of their team/national identifiers… to avoid the issue in future.

http://www.theaustralian.com.au/news/sport/john-coates-persuades-jacques-rogge-to-allow-boxing-kangaroo-flag-to-fly/story-e6frg7mf-1225828056533

IOC Tells Australian Skater she cannot wear bracelet that features third-party trademark. Bracelets and similar items are considered “sponsorship” by the IOC and banned during competition.

http://www.theprovince.com/sports/2010wintergames/Aussie+skater+banned+from+wearing+bracelet+memory+dead+friend/2545711/story.html

How Far Will The USOC Reach To Enforce Olympic trademarks and copyrights?

http://seattletimes.nwsource.com/html/ronjuddsolympicsinsider/2010909904_no_tears_shed_here_over_usocs.html

http://www.jdsupra.com/post/documentViewer.aspx?fid=d32a7849-0c0b-444d-ad8f-1226913dfcff

The Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games has filed 173 trademark applications in Canada since 2004. Many applications were filed, but the registration process was not completed. Clearly, after each great idea by the Olympic committee, a new round of applications were filed in an attempt to reserve numerous marks. The “Inukshuk Design” mark which is the symbol most recognizable with the 2010 Winter Games. The application was filed and registered in 2005…well before the actual 2010 Winter Olympics

• FACTS: in 1990, Frank Gaylord, an 85 year old, WWII veteran won a contest to create a Korean War Veteran’s Memorial, sponsored by the Government. A few years later, in 1995, John Alli, took hundreds of photos at the site. Then, in 2002, the US Postal Service paid Alli $1500 to license one of his photos for use as a postage stamp.
• Gaylord sued, claiming The U.S. Postal Service must compensate him for an image on a 37-cent stamp issued in 2002 because he never gave permission to use the sculpture.
  • The ultimate outcome of copyright infringement suit began with the lower court throwing the case out because the government was the co-owner of the work so it had the right to use the images.

Gaylord v. U.S.: http://www.cafc.uscourts.gov/opinions/09-5044.pdf

Postal Service must pay sculptor :: CHICAGO SUN-TIMES :: Nation

US Postage Stamp Found To Be Infringing On Copyright Over Statues In US Korean War Memorial

An 85-Year-Old Sculptor vs. The Government (Fed. Cir. 2/25/2010)

What about the money?

USPS initially paid $775,000 for the sculpture

In 1995, Alli took hundreds of photographs of the memorial on a snowy day and eventually produced a single, haunting photo. In 2002, the federal government paid Alli $1,500 to use his photo as the basis for a 37-cent postage stamp.

USPS brought in more than $17 million from the sale of 48 million stamps, including about $5.4 million in sales to collectors–before the agency retired it –> Gaylord sought 10% of sales as royalties

Is this fair use?

The lower court ruled that this was fair use because the stamp clearly quite transformative, different in nature, and did not harm the commercial value of the original work.

the documents expressly kept copyright rights with Gaylord

Recall also, Community for Creative Non Violence v. Reid 490 U.S. 730 (1989) (sculptural work NOT a “Work Made For Hire” because not an enumerated type of work, and sculptor not an employee).

Wikipedia: http://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid

Opinion: http://scholar.google.com/scholar_case?case=3326238332286533012&q=reid+nonviolence&hl=en&as_sdt=2002

Recall our discussion a couple of months ago about the “Bull Market” sculpture in NYC, and the “Little Mermaid” in Michigan?

MUSIC:

Pink Floyd v. EMI

Artist right to preserve integrity of album against single song sales.

http://news.yahoo.com/s/ap/20100311/ap_on_hi_te/eu_britain_pink_floyd_11

Pink Floyd challenge EMI over single track sales | Business | The First Post

Pink Floyd Suing EMI Label Over Online Royalties (Update1) – BusinessWeek

CASES

JD Salinger prevents publication of new book
Salinger v. Colting, No. 09-50905 (S.D.N.Y. 2009) Order

YOUTUBE CASE OF THE MONTH

TENENBAUM LITIGATION

(THE CIRCUS CONTINUES)

FAIR USE CORNER

Does an Anti-Plagiarism Service Violate Students’ Copyrights when it maintains a database (i.e., copies) of student papers?

Supreme Court Denies Cert in Cablevision online DVR case.

NOVELTY CASE OF THE MONTH

Man sues over use of canned music in British production of a musical… and wins! (UK case)

• http://jetl.wordpress.com/2009/06/15/lindt-defends-chocolate-bunny/

Yes, Lindt does have a US trademark registration for “Chocolate, chocolate products, namely, a chocolate bunny in a foil wrapper.”

Link to screen shot from pto http://www.jdsupra.com/post/documentViewer.aspx?fid=3d26257d-7d8d-46d3-bb2a-4189816626c3

The application was based upon a priority filing date from a foreign application. The US application was initially refused with the examining attorney claiming the proposed mark comprises a configuration of the goods that is not inherently distinctive and would not be perceived as a mark. The refusal was overcome by filing a distinctiveness claim (provision 2(f)) based on continuous use of over 5 years and a claim in an earlier filed US trademark application. The question remains, if the EU registration is cancelled, could the US registration be cancelled because of the priority claim relating to the EU registration, or would the US registration be amended to show a later date of first use?

• New Jersey Court rules Blogger is not a journalist and not subject to reporter’s privilege or shield law
  • http://lawprofessors.typepad.com/media_law_prof_blog/2009/07/new-jersey-judge-rules-blogger-cannot-claim-protection-of-shield-law.html
  • Where’s the line between journalist and citizen-on-a-soapbox?
  • Is a blogger a “media defendant”?
  • Does NY Times v. Sullivan elevated standard of “Actual Malice” apply?
• By Contrast, California courts have held that Bloggers ARE journalists:
  • http://www.mediabloggers.org/california-courts-rule-bloggers-are-journalists
  • Apple Barred From Obtaining Source Of Blog’s Article – O’Grady v. Superior Court – 139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)
• Sarah Palin resigns, attorney threatens media, bloggers, etc. (Adrianos’ Blog post commenting on state of journalism)
  • Would she have a claim? Public Figure? Couched as opinion? Reporting on the fact of rumors?