Tag: Copyrights

Round Up – Intellectual Property and Cyber Security Things You May Have Missed (Including Some Good Summer Cocktail Banter Material)

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Cyber Security Report – Earlier this year, Verizon released its 2013 Data Breach Investigations Report.  The report analyzes and presents data regarding the current state of various data breaches and network attacks.  Some of the results are surprising.

  •             92% of breaches are perpetrated by outsiders
  •             19% of breaches are attributed to state-affiliated actors
  •             76% of network intrusions exploit weak or stolen credentials
  •             66% took months or more to discover

Do Trademark Lawyers Matter? – An empirical study, published in the Stanford Technology Law Review, provided the results of a grueling analysis of 25 years worth of data from the United States Patent and Trademark Office records on whether being represented by a trademark attorney makes a difference in the likelihood of success in getting your mark registered.  The results?  YES!  It turns out that, overall, trademark applicants who are represented by an attorney are 50% more likely to have their marks registered.  The results are even more dramatic when an application faces an obstacle (e.g., an office action).  In those instances, applicants were found to be 68% more likely to proceed to publication when represented by counsel.  Perhaps its time for a national trademark lawyer appreciation day! (I’m not holding my breath).

Does Keyword Advertising Really Work?  eBay recently released a study, entitled “Consumer Heterogeneity and Paid Search Effectiveness: A Large Scale Field Experiment” which analyzed the effectiveness of eBay’s keyword advertising efforts.  So does keyword advertising really work?  Not so much.  According to the study, for well known brands (like eBay), new and infrequent users may be more influenced by keyword triggered advertisements.  But more experienced searchers and otherwise loyal brand users are not influenced by the ads.  When eBay stopped its keyword advertising, almost all of the traffic lost from the absence of the ad was picked up in the native search results.  It’s important to note, however, that this study was focused on a single well known brand.  The results may be quite different for other brands or for less well known brands.  Moreover, the study says nothing about the use of a trademark by a competitor as a keyword to drive traffic to the competitor’s website.

Marketing Your Mobile App – The FTC has released guidelines for mobile app developers when advertising their software.  The plain language guide is very high level, but does include some helpful tid bits to remember.  Highlights include:

  • Advertising is everything a company tells a prospective buyer about its app (whether its in the formal ad campaign or in other communications).
  • Don’t bury key disclosures in “dense blocks of legal mumbo jumbo” or behind hyperlinks.
  • Build in privacy by design, including principles used in selecting default settings.
  • If you change your privacy policy, you need to get user’s consent.  Merely editing the language of the policy isn’t enough.

Effective Disclosures in Digital Advertising – The FTC also released guidelines for online advertising.  This new guidance focuses on the peculiarities and challenges associated with online advertising.  Where this adds new value is in its analysis and detail (with examples!) of the following areas:

  • Proximity and Placement – where disclosures have to be placed to be effective
  • Hyperlinks – including proper labeling and placement
  • Prominence – including use of size, color and graphics
  • Distractions – risks from graphics, sounds and links that may distract from disclosures
  • Multimedia – use of audio and video

Attack on “Happy Birthday” Copyright.  Salon.com reported yesterday that a class action suit has been filed to attack the copyright in the popular birthday celebration tune.  According to the report, the lawsuit was prompted by a documentary uncovering evidence that the song was originally published as early as 1893 and that the current copyright is based on a 1924 publication date which grants the work 95 years of copyright protection.  Based on my count, there’s only about 6 years left in the alleged copyright to begin with.  Hopefully the lawsuit gets resolved before then.

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The Fate of the Music Industry is Jeopardized by Copyright Decision

The National Law Review recently published an article by April L. Besl of Dinsmore & Shohl LLP regarding the Music Industry and Copyrights:

Decision Impacts Billions of Dollars in Royalties

A recent decision out of the Court of Appeals for the District of Columbia Circuit could have lasting implications on all Copyright Royalty Board rate determinations since 2004. In the case Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a unanimous panel at the D.C. Circuit found that the structure of the Royalty Board was unconstitutional under the Appointments Clause.

Intercollegiate Broadcasting is an association of “noncommercial” webcasters offering transmission of digitally recorded music over the internet at high schools and college campuses. These broadcasts constitute “performances” under the Copyright Act and thus require royalty payment to the song owners. When parties cannot agree upon the license terms, they can go before the Royalty Board for a determination of a fair royalty rate. Established in 2004, the Royalty Board is composed of three judges appointed to six-year terms by the Librarian of Congress.

After being unable to come to terms as to a royalty rate with a non-profit clearinghouse for musicians called Soundexchange, Inc., the parties took their dispute before the Royalty Board who issued a final determination setting a rate Intercollegiate would have to pay. Intercollegiate appealed the decision to the D.C. Circuit arguing, among other things, the unconstitutionality of the Royalty Board’s structure under the Appointments Clause.

Specifically, Intercollegiate argued that the Copyright Royalty Judges (“CRJs”) exercise significant ratemaking authority, without any effective means of control by a superior which qualified them as a “principal” officer under the Appointments Clause. All “principal” officers must be appointed by the President with Senate confirmation, which made the appointment of the CRJs unconstitutional.

The D.C. Circuit agreed, first finding that CRJ decisions can have considerable consequences that can affect the fates of entire industries and implicate billions of dollars in royalties. The panel also noted that CRJ decisions not only impact traditional forms of music media (e.g. CDs and vinyl) but also emerging technologies including digital downloads, non-commercial broadcasting, and certain cable transmissions. In light of the significant authority, the fact that the Librarian of Congress could not affect decisions of the CRJ’s or even remove them from office made them “principal” officers under the Appointments Clause.

Rather than wait for Congress to act, the D.C. Circuit chose to nullify language from the Copyright Act that originally had barred the Librarian from removing the Judges from office, thus making them “inferior” officers. In so doing, the D.C. Circuit held that the rate determination of the CRJs for Intercollegiate was vacated due to the unconstitutional nature of the Royalty Board’s structure.

Whether or not this has opened the door for entities to challenge rate decisions made by the Royalty Board as invalid since 2004 is still up for debate but copyright owners and broadcasters should certainly be prepared for a potential fight in the near future.

© 2012 Dinsmore & Shohl LLP

Copyright Lessons from the Campaign Trail: Romney, Gingrich and Fair Use

Recently found in The National Law Reviewwas an article by Geri L. Haight of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding Copyrights and Fair Use:

This Republican primary season has provided lots of fodder for political blogs, but it has also provided a few gems relating to — what else — trademark issues.    Now, U.S. copyright law is in the spotlight of the Republican primary campaign.  First, Republican presidential hopeful Mitt Romney is considering whether to pull a television ad that is comprised wholly of a 30 second clip from a January 21, 1997 episode of NBC’s “Nightly News” program hosted by Tom Brokaw.  The Romney ad is entitled “History Lesson” and can be viewed here.  In the ad,  Brokaw announces the House Ethics Committee’s decision to penalize then-Speaker Newt Gingrich.  The ad contains no other voiceover or images.  It ends simply with a Romney disclaimer (“Paid For By ….) and the statement that Romney approves the ad.  NBC has sent the Romney campaign a cease and desist letter, alleging that the ad constitutes copyright infringement.  Tom Brokaw has expressed that he is “extremely uncomfortable” with the use of his personal image.   Romney’s campaign asserts that its use of the news clip  “falls within fair use” and, therefore, does not violate copyright laws.

Second, Romney’s primary opponent in the race for the Republican nomination, Newt Gingrich, has copyright troubles of his own.  On Monday, Gingrich was sued in Illinois by a former member of the band Survivor (under the name “Rude Music”) for his use of the song “Eye of the Tiger” at campaign events.  The complaint asserts that Gingrich is “sophisticated and knowledgeable” of federal copyright law, citing Gingrich’s tenure in the U.S. House of Representatives during which the Copyright Act underwent several revisions.  As evidence of Gingrich’s further familiarity with copyright laws, Rude Music cites Gingrich’s recent criticism of the Stop Online Piracy Act at the Republican primary debate in South Carolina.  During that debate, Gingrich is quoted in the complaint as saying: “We have a patent office, we have copyright law. If a company finds that it has genuinely been infringed upon, it has the right to sue.”  In the complaint, Rude Music seeks an injunction and unspecified monetary damages based on Gingrich’s unauthorized public performances of the song.

Romney’s and Gingrich’s recent copyright troubles involve the defense of fair use.  So, what is that?  This defense to a charge of copyright infringement is provided in Section 107 of the Copyright Act.  Section 107  contains a list of the various purposes for which the reproduction of a work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.   This provision sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

In Romney’s situation, NBC’s position seems to be focused largely on the first factor — its assessment that use of the news clip is commercial in nature.  The clip is used in a political ad that seeks, among other things, donations to fund Romney’s campaign against Gingrich.  But Romney’s campaign has stressed that it used only 30 seconds of a much longer broadcast and that it is using the clip for the content of the facts conveyed (regarding Gingrich’s past ethics violations), not for the particular style of the delivery of those facts.  And Romney seems to be using the clip to comment on Gingrich’s representations during the campaign regarding these past ethics violations.  The risk for the Romney campaign, however, may be the problem with reliance on the fair use in general, identified by the U.S. Copyright Office itself:  “The distinction between fair use and infringement may be unclear and not easily defined.”  But maybe that’s the point.  The Romney ad is certainly getting lots of attention due to NBC’s assertion of a copyright infringement claim.

In Gingrich’s case,  there are arguments for and against application of the fair use factors for both sides.  Again, because the songs are played at campaign events, there is an arguable commercial component to the use.  But there are also arguments about the use being political speech and commentary (given the theme of Gingrich’s underdog status).  The case involves claims that arise frequently in the content of political campaigns (e.g., Jackson Browne sued John McCain in 2008 based on the candidate’s use of the song “Running on Empty” in an ad mocking then candidate Barack Obama’s energy policies).  Though common, most cases settle early so that we do not have a wealth of case law resolving this issue.

NBC and Rude Music have both expressed false endorsement and right of publicity concerns.  By using the NBC news clip, does the public believe that NBC and/or Brokaw endorse Romney?  Or does the band Survivor endorse Gingrich because Gingrich uses “Eye of the Tige” at his campaign events?  Clearly, this perception is a concern to Brokaw, who has stated that he does not “want [his] role as a journalist compromised for political gain by any campaign[.]“  In a world where journalists are perceived as favoring one political party or the other (e.g., Fox News or MSNBC) and musicians take sides in political fights (e.g., Springsteen endorsing Obama or Wayne Newton endorsing Bachmann), such a claim may have legs.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.