A Layer Cake, or a Tower of Babel? Toward a General Theory and Test for Selection and Arrangement in Copyright Law One of the most bedeviling copyright concepts is… well, it has lots of different names. In the recent “Stairway to Heaven” decision, it was called...
Wherein Some Bad Old Mistakes Are Fixed, but Led Zeppelin Need Suffer No Longer The last couple of times I blogged about the “Stairway to Heaven” case, I was defending the Ninth Circuit’s decision to send the case back down to the trial court for a re-do, even though...
There’s little doubt that STELLA ROSA wines are popular. I’ve never tried them, but I am assured by wine critic Patrick Comiskey that they “resemble wine, they’re reminiscent of wine, but no one who drinks wine regularly would mistake it for wine.” It is, however,...
How Can Copyright Law Be Reformed to Avoid Results Like “Blurred Lines” and “Dark Horse”? Part 2. Damn the Damages! Full Speed Ahead! This is the third in a series of posts about the dread supposedly wrought by recent music copyright cases (all of which were filed in...
Last week I read a smart post about some of the shortcomings of the now 20-day-old California Consumer Privacy Act (CCPA), and how it may not cover downstream data resellers in any kind of an effective way. I encourage anyone working in the data protection space to...
Reforming Copyright Law Last time, I questioned the premises and theses of the common notion that the “Blurred Lines,” “Stairway to Heaven” and “Dark Horse” cases are chilling creativity. My main point was that the only way to determine whether this was happening is...
Or your employer or the commissioning party, depending on the circumstances.
For a certain value of “idea.”
Bearing in mind it was the plaintiff that did the dissecting.
I say “belatedly” because plaintiff failed to make this argument at trial or to insist on its preferred jury instruction at the time.
Again, software needs its own regime of protection. Copyright and patent don’t get it done.
OK, but in that last one, I was starting to agree it wasn’t worth saving.
Actually, I think the Ninth Circuit is so large that even “en banc” doesn’t include every single judge.
As it happens, that jury verdict was just reversed, but on other grounds.
OK, there’s a really obscure sixth one. Let’s not worry about it.
Alleged moment, since Thicke recanted everything, but not everyone believes him.
Fortunately, the “intrinsic” and “extrinsic” tests are not much used outside of the Ninth Circuit.
Remember, an appeals court can only address the questions put before it. Anything else and it’s “making law,” which is for legislative bodies.
This description reminds me unpleasantly of “wine coolers.” Those aren’t a thing any longer, right?
In this case, there isn’t any practical difference between trademark and trade dress because the trade dress isn’t in the product configuration, just the “packaging.”
Under the Rules, this requirement is mandatory. Courts, however, often excuse the plaintiff from compliance.
There were other elements that the court thought were similar, but they seem very minor to me.
If it’s not clear from my tone, I think the “old days” had this one right.
The basis for this belief is the idea that juries are usually harsher when they are empaneled solely to determine damages, such as when there’s a retrial or remand just on damages, e.g., the Thomas-Rasset case.
For a certain value of “significant.”
Counter argument: maybe buyers of the infringing copies wouldn’t have paid what the legitimate sellers were asking for, so not all such sales displaced legitimate sales.
There are some difficult cases, too. What if you prove you’re owed a reasonable royalty, say 5% of the defendants’ revenues? Should that amount be deducted from your award of the defendants’, since their profits would have been reduced by the they would’ve paid you in royalties?
The word “portion” is doing a lot of work here because it means more than just a discrete bit of the copyrighted song. It would also include the “constellation” of elements at issue in the “Blurred Lines” case, which isn’t so much a collection of bits as the way the bits were combined.
Apparently, the plaintiffs argued that the apportionment should be 45% because “ostinato #2” appeared in 45% of the song, which is just an awful argument. But also, why even concede that much? A terrific chorus might account for 20% of a song but might be the main thing listeners remember of like about the song.
If you combine the two awards on grounds that the jury was confused, then it’s closer to 45%.
Apologies if this makes them look like they came out of the King James Bible.
Ugh, this are of the law is unsettled and difficult, and it’s not central to my project, so…
To be clear, the infringers would still bear the burden of proving expenses.
Strangely, this quote comes right after Wang notes that a jury ruled in FAVOR of Led Zeppelin.
I.e., when the Constitution and Bill of Rights were drafted and ratified.