After a 7-day trial, a jury in the Western District of Washington awarded a verdict in the amount of $ 1,694,480 against Sears, Roebuck, and Co. (“Sears”) and its ad agency, Young & Rubican Inc. (“Y&R”), for Sears’ infringement of Lucky Break Wishbone’s “Wishbone sculpture” (VA 1,325,348) copyright and  Sears and Y&R’s infringement of the “Lucky break wishbone product warning” (TX 6,594,959) copyright.

On March 6, 2006, Lucky Break Wishbone sued Y&R and Sears for violating its copyright in the Lucky Wishbone Sculpture.  Sears moved to dismiss the complaint claiming that the Lucky Break wishbone sculpture “lacks even the modicum of originality required to merit copyright protection.” According to Sears,  it was just a copy of a natural item, not subject to copyright protection and, even if it were it would be a “thin copyright” at best.  Additionally, because Sears allegedly infringed the copyright before Lucky Break registered the sculpture with the copyright office, Sears argued that “the Copyright Act precludes recovery of statutory damages and attorneys’ fees where the infringement commences before the effective date of the work’s registration.”

Lucky Break first published its Wishbone Sculpture in 2004, but only registered copyright in December 2005; Sears’ infringement occurred in November 2005.

In a November 16, 2006, ruling from the bench, Judge Thomas S. Zilly ruled on Sears’ motion dismissing Lucky Break’s attorneys’ fees, trademark, and consumer protection claims, but upholding its copyright claim, with the understanding that “it should be the law of this case that any right to copyrightable claims should be governed by the requirements of thin copyright protection under Ninth Circuit law, and where that will take us will await another day.” (Hearing Transcript.)

A thin copyright typically means that there is not much original copyrightable expression in a particular work. Therefore, a plaintiff must show almost identical copying to establish infringement.

Plaintiff responded by filing an amended complaint, alleging only copyright infringement. Followed by a second amended complaint alleging copyright infringement of both the sculpture and the product warning. Despite numerous procedural motions brought by Sears and the higher burden of showing infringement of a thin copyright, plaintiff was able to demonstrate to the jury that Sears had obtained prototypes of the Wishbone sculpture, sent it to China to be copied, distributed it as a promotion to stores with copy of Plaintiff’s product warning, and that the promotion increased Sears sales. Therefore, Lucky Break was entitled to a reasonable licensing fee for each of the infringing wishbone’s sold, for the infringing copy of the product warning, and for the increased profits caused by the infringing promotion.

Chalk one up for the little guy.

 An Original work of authorship.

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“Copyright protects your creation.  All the way across the nation!”–Detective Cop E. Wright

Detective Cop E. Wright explains the ins and outs of copyright law in a new online audiovisual teaching module designed by the Library of Congress.  It has a nice catchy little tune in the ”copyright exposed” section and quickly covers the main points of U.S. Copyright law. “Files on record”provides a nice time line of the evolution of copyright from the beginning of the written word until today.  Also included are sections on common copyright myths and steps to secure a copyright registration.  I can’t quite figure out what the target audience is, but I’m imagining its aimed at the “tweeners” out there.

Run, don’t walk.

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NPR reporter Cheryl Corley reported today on Corbis Corporation’s continuing battle with the estate of James Brown.  Corbis licenses more images than Bill Gates has pennies, but its license to use images of Mr. Brown are limited to the copyright in the image, not any underlying rights of publicity. That means that you may license copyright from Corbis to use an image of Mr. Brown, but if you make any commercial use of it, you could be liable to the Mr. Brown’s estate.

The interesting aspect of this case is the estate’s claims that by making the images available for a license fee, Corbis also ismaking commercial use of Mr. Brown’s images.  Corbis scoffs at the idea noting that image banks have never been liable for the improper uses made by end users and that the estate should pursue any infringing end users, not a legitimate and legal stock image bank. 

However, the 4th division of the Illinois Court of Appeals refused to dismiss the action noting that,

“In light of the vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales, we cannot say that the facts are undisputed that Corbis’ display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the Publicity Act.”

Moral of the story–always get a model release when you createan image of someone.  In the alternative, when you license an image from a third party, find out what releases or licenses they have obtained before making any commercial use. 

(For a great discussion of copyright versus publicity rights, read Carolyn E. Wright’s Photo Attorney blog.)

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The American University’s Program on Information Justice and Intellectual Property (PIJIP) announces the release of a new code of best practices in fair use for creators in the burgeoning online video environment. The code was coordinated by PIJIP and the American University Center for Social Media. This adds to the Center for Social Media’s report on copyright and remix culture, Recut, Reframe, Recycle released in January.

The code, which was made public today, represents the next step. Collaboratively created by a team of media scholars and lawyers, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law.

The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

• Commenting or critiquing of copyrighted material
• Use for illustration or example
• Incidental or accidental capture of copyrighted material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works

According to the code, examples of such use may include, a blogger’s critique of mainstream news (commentary), the toddler dancing to the song “Let’s Go Crazy” (incidental capture of copyrighted material), and many variations on the popular online video “Dramatic Chipmunk” (recombination of existing work to create new meaning.)

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In the latest ruling issued on July 1, 2008, by Federal District Court Judge, Louis L. Stanton in the Viacom v. YouTube case, Google was ordered to turn over the  copies of all videos that were once available for public viewing on YouTube.com but later  removed for any reason and all data from YouTube’s logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website.

Google argued that the data should not be disclosed because of the users’ privacy concerns, saying that “Plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP address.” However, citing Google Public Policy’s own posting, stating that IP addresses alone should not be considered Personally Identifiable Information (“PII”) (Are IP addresses personal?), the Court found that IP addresses and anonymous user names were not enough information to implicate a sufficient privacy concern to prevent disclosure to Viacom.

Despite the fact that anonymous user names and IP addresses provide insufficient information to identify an individual, the negative publicity has sent Viacom on the PR offensive to let the world know that it’s not an overweening ogre, but just your average multibillion dollar content owner next door looking to protect its interests.

Viacom also made a play for “the computer source code which controls both the YouTube.com search function and Google’s internet search tool ‘Google.com’.”  Reason prevailed and this information was not ordered produced to Viacom.  Viacom had claimed it would use such information to determine whether YouTube was doing everything it could to prevent online copyright infringement. 

In a possible commentary on the near impossibility of preventing online copyright infringement, the Court noted that “If there is a way to write a program that can identify and thus control infringing videos, plaintiffs are free to demonstrate it.”

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