Part 3 of 3: When Doing Nothing Is the Best Choice
This is the last in a series of posts about how the popular quasi-charitable event organizer, The Color Run, got into such a serious scrape with a freelance photographer because of a too-casual copyright license. As I showed last time, The Color Run was lucky that the photographer hadn’t timely registered the copyrights in the photographs, or else his absurd $100,000 demand wouldn’t have been so absurd.
This post is about The Color Run’s reaction to the said absurd demand. Recall that The Color Run reacted by suing the photographer, Maxwell Jackson, for (1) a declaration that it had a license to use the photographs, and (2) trademark infringement. In my introductory post, I suggested that the claim for declaratory judgment was defensible but the trademark claim was a “dick move.”
I Do Declare!
While seeking a declaration of non-infringement was defensible in the face of a $100,000 demand, it wasn’t necessarily the correct or wisest course of action. The other course of action was to do nothing and see if Jackson really would sue. Sometimes, in law, doing nothing is the best course of action. Yeah, … Read More»
The Color Run v Photographer Part 2: The Joys of Copyright Registration and the Perils of Being a Licensee
Part 2 of 3: The Photographer’s Case
Last time, I discussed how The Color Run, a party with (as we’ll see) fairly sophisticated IP counsel, got into such a pretty bad, but avoidable, public-relations scrape with a freelance photographer, Maxwell Jackson, who is (as we’ll also see) very unsophisticated about IP. The main problem was that the parties were way too casual in licensing the photographer’s works for The Color Run’s use, and the parties ended up with two very different understandings of what The Color Run could do with the photographs.
Either they didn’t actually reach an agreement (a “meeting of the minds” as lawyers like to say), or they quickly forgot what they had agreed on. Whichever, they didn’t think to resort to the sensible but surprisingly rare expedient of putting in writing what they want. The Color Run just assumed it could use the photographs however it wanted*, and Jackson just assumed that The Color Run would help promote his business by attributing the photographs to him.**
* One can speculate how The Color Run came to this misunderstanding. Perhaps it thought it could ride roughshod over an individual photographer? More likely, in my … Read More»
Part 1 of 3: These Colors Run (Maybe Too Fast) to the Courthouse
Or maybe you’ve heard the one about the photographer who let a quasi-charitable fun run use his photographs to help promote his business but got unreasonably aggressive when things didn’t work out as planned.
What we have here is a kind of reverse Mexican standoff. You know, where two guys are pointing their guns at each other, neither daring to lower their aim but afraid to squeeze the trigger? Except, in this case, the guns are really old and are more likely to explode or backfire as to shoot straight. In this case, the only rational thing to do is lower your aim—which, interestingly, is what recently happened in the dispute between The Color Run and freelance photographer Maxwell Jackson.*
* According to Jackson’s Facebook page.
Everybody Loves a Good Photograph
We Took the Whole Thing, But it Was for Journalism!
I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.
The Secret Pleasures of Earnings Calls
Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.
As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of … Read More»
People can be terribly clever sometimes. Take the Holderness Family, for example. Apparently, mom was too busy running triathlons to sit down and write out a family newsletter, so the family made up a rap to the music of “Miami,” by Will Smith, and made the cutest video, which has now, of course gone viral (Dad’s a news anchor, which gives him a little bit of an unfair advantage, in case you were feeling suddenly inadequate about your holiday preparation skills…):
Super cute. But not a parody.
If you’re an ancient Greek and your understanding of the word parodeia is “song sung alongside another,” then these new lyrics to Will Smith’s composition would probably qualify. But the definition has changed over time and through the formation of the English language, which is the one we care about for purposes of American copyright law.
I am jumping to the issue of whether the Christmas Jammies song is a parody because if it isn’t, then what the Holdernesses did with Will Smith’s song isn’t fair use. (There’s no category of fair use for writing new lyrics to pre-existing music unless it’s a parody). And if it isn’t fair use, then it’s copyright … Read More»
A Bad NDA Can Be Worse Than None at All
In business, one of the most routine legal documents you’re likely to run into is a non-disclosure agreement, better known as an “NDA.” They’re super handy because they let you disclose secret stuff to business partners and potential business partners without giving away the farm. A lot of business just couldn’t get done without them. NDAs are so essential to and routine in business that NDA forms are one of the most popular documents on online legal-documentation services, like LegalZoom. There’s kind of a dark side to NDAs, though. If you don’t comply with their terms when disclosing your secrets, you do give away the farm. This might not seem too surprising, but but it is, when you consider that not every disclosure of a trade secret to a third party necessarily eviscerates the sine non qua of trade-secret protection, i.e., secrecy.
She’s too busy doing science to keep track of all those fussy NDA provisions!
Trading Old Secrets for New!
Let’s step back a moment, and I’ll explain what I mean. You can think of trade secrets as having a “trade” and a “secret” component. The “trade” component … Read More»
Ninth Circuit Clarifies that “Willfully” Means “Willfully”
I think most people know that there is such a thing as criminal copyright infringement, i.e., copyright infringement so heinous that the U.S. government will take time from investigating drug deals to investigate the copyright infringement. How heinous? So heinous that even Jammie Thomas-Rasset, who was found liable for allowing 24 song files to be downloaded via a peer-to-peer network, and was found liable for hundreds of thousands or millions of dollars in damage (depending on which jury you ask)—even she did not do something heinous enough. I mean, it really has be terrible, terrible, terrible. Like, industrial-scale terrible.
Actually, that’s technically an exaggeration (though it’s true as to Thomas-Rasset). As a practical matter, the FBI and U.S. attorneys prefer to expend their limited resources on truly large-scale operations*, the law only has two additional requirements that make garden-variety civil infringement into criminal infringement. First, the act of infringement must be committed “willfully.” Second, it must have an economic motivation.**
* Generally speaking, in criminal law, the trend has been to making more and more things illegal (and increase the punishment), then leave it up to prosecutors and police to decide whether … Read More»
Oh, Those Pesky, Pesky Employees!
From a legal* point of view, hardly anything good ever comes out of the employer-employee relationship**, when you think about it. Wrongful termination suits, reams of paperwork to create a “paper trail” to counter wrongful termination suits, making oral promises the company can’t keep, entering into contracts the company isn’t aware of, getting into accidents in the course of their employment (and making the company liable), and so on and on.
* Of course, hiring is based on need. Nobody ever said, “Oh, I’m really desperate for some help, and there’s lots of it, but I’m afraid of the legal ramifications!” Which isn’t to say there aren’t transaction costs to hiring employees.
** The one exception I could think of: works created by employees in their course of their employment are considered to have been created by the employer. Not that this “work made for hire” doctrine isn’t without controversy.
We can add one more thing to the list: when your employees are using a service that your company provides. Let’s say your company is in the business of hosting and publicly performing uploaded content, which might or might not infringe copyright. And let’s say … Read More»
The state of Texas is looking more and more like it’s forgotten that there’s a world outside of itself. Cue the weird article from Time this week that reads like it was written by Rick Perry himself, about how everyone’s moving there, buying hats and being self-reliant in their cheap houses with no income tax.
A slight recanting before I even get started: I love the people of Texas. I have lots of friends there, blah blah blah. But, of course, there was that one girl I met in Austin who told me she went to school “up north,” which, it turns out, meant in Lubbock…..
This attitude, it seems, that everything begins and ends at the state line, has given rise to some trademark cases that to us non-Texans, look pretty aggressive. Trademark law, as we have explained here here here and here, is only secondarily about protecting brand owners from infringing competitors. It is first and foremost a method of protecting the public from confusion over the products they buy and the services they consume. We don’t want two drugs called “Advil,” when one treats headaches and the other treats skin rashes but has … Read More»
On the Importance of Knowing Just Enough
As we all know by now (quick primer here), the DMCA safe harbor is a marvelous, marvelous thing for internet-related system operators—not just YouTube, but any website that interacts much with its users—but that marvelous protection can be lost if you’re not careful. One way to lose it is to have actual or “red-flag” knowledge of infringing activity on the network. The tendency among service providers, therefore—and something of a perverse incentive—is to remain as ignorant as possible of user activities on the system, unless forced to pay attention via a DMCA takedown notice.
Upload, Infringe, Repeat
But, as the recent Hotfile case demonstrates, complete ignorance isn’t good for your DMCA safe harbor. That’s because you have to promulgate and reasonably implement a policy that terminates repeat infringers. The Hotfile court held that implementing a repeat-infringer policy involves collecting some information.
As I’ve explained here, here and especially here, these repeat-infringer requirements raise several difficult questions that have not be adequately addressed by the courts. In Hotfile, the main question was: what is the minimum you have to do to have “reasonably implemented” a repeat-infringer policy? Folded into … Read More»