On Monday, Central District of California Federal Judge Gary Klausner gave Presidential candidate John McCain, the Republican National Committee, and The Ohio Republican Party an extension until November 17 to respond to the complaint for copyright infringment filed against them by musician Jackson Brown.  Judge Klausner had previously ordered the defendants to answer the complaint by October 24.

At issue in the case is a commercial released by the Ohio Republican Party that mocks Barack Obama’s suggestion that the country’s motorists could conserve gasoline by keeping their tires properly inflated.  During the commercial, a sound recording of Jackson Brown’s Running on Empty plays in the background.  According to Mr. Brown’s complaint, this “falsely suggests that Brown sponsors, endorses and is associated with McCain and the Republican Part. when nothing could be further from the truth.”  None of the defendants sought or obtained a license of permission to use Mr. Brown’s work.

McCain and the republican party have been on the wrong end of a number of cease and desist letters from artists whose songs were used without permission of compensation, including ABBA, Franki Valli, and John Mellencamp.  To date, only Mr. Brown has brought suit, but any of the other artists likely would have standing to do the same.  (If you change your mind ABBA, take a chance on me.)

Assuming for the moment that this is a clear cut example of copyright infringement, the interesting question becomes what potential exposure does McCain have for damages?  We don’t know what his position is because the defendants have managed to avoid answering Mr. Brown’s complaint.  However, I think its safe to assume that McCain will claim that he had no hand in the development of the commercial and that he never approved violating intellectual property or publicity laws. 

That’s where the Bipartisan Campaign Reform Act (BCRA), enacted in 2002, comes into play.  It requires “a statement by the candidate that identifies the candidate and states that the candidate has approved the communication”. The “Stand By Your Ad” provision was intended to force political candidates running any campaign for office in the United States to associate themselves to their television and radio advertising.  One would think then, as a matter of law, Mr. McCain cannot claim to be an innocent infringer. It will be interesting to see whether BCRA is interpreted this way by the court.   

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What is copyright?

Copyright is the set of exclusive rights granted to the creator of a particular work. These rights include the right to reproduce the work, distribute copies, and create new works based on the original work. Copyright protection lasts for the life of the author plus 70 years, and can protect such things as:

• Literary works
• Software code
• Music compositions, sound recordings
• Visual works
• Films, television shows
• Architectural works, and
• any original work of authorship

While copyright registration is not necessary to own a copyright, it is required to enforce your rights and to control the use of your work.

Read the entire Legal Guide at Avvo.com

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In a subject near and dear to my heart, Diane Von Furstenberg Studio LP (”DVF“) filed a copyright infringement suit against Target Corporation. The case is not yet available online, but was reportedly filed on Thursday in Manhattan in the Federal District Court, for the Southern District of New York.

The basis of the suit is that Target copied DVF’s “spotted frog” print and is selling a dress under its Merona label with an identical design. DVF registered the “Spotted Frog” design with the Library of Congress in 2006, which gives DVF the presumption of ownership, the potential to force Target to pay up to $30,000 per act of infringement, and the ability to have Target pay DVF’s attorneys fees. Had DVF failed to register its copyright none of these fun (for DVF) remedies would be available. Well done DVF.

(Check out the article, “Always Register Copyright” in the Winter 2008 Issue of The AXIOM for more information on the benefits of registering copyright in the U.S. )

The issue of protecting the work of fashion designers has always been a tricky. Copyright does not protect “useful articles.” Which generally means that dresses, hats, bags and the like cannot be protected under copyright law; however, prints, and patterns (such as “Spotted Frog”) are protectable because of their artistic value.

Some useful articles may be protected using design patents, which protect novel designs. However, design patents are slow to issue and fashion may have moved on three or four seasons before a designer obtains an enforceable design patent registration. Great if you are designing an iconic piece that will be sold for years, but of more limited value if you retire a look at the end of a season.

Additionally, if a design is unique enough to tell to consumers that the design comes from a particular source (i.e. “that is a DVF dress”), it may be protected under trademark law. However, it’s a difficult task for the designer to prove to a court that a design is so iconic and so tightly associated by the public with a particular designer that it should be protected.

The Design Piracy Prohibition Act (which died in committee in mid-2007) would have amended the Copyright Act to allow a fashion design protection for three years from the first day a design was revealed to the public. Its unclear whether the bill will be reintroduced in the future.

In the meantime, fashion designers have a mishmash of intellectual property laws to use to try to protect their work, with mixed results.

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There are a number of arguments to be made that copyright infringement penalties are too harsh. Some members of congress, however, feel they need to be stiffened up. The Prioritizing Resources and Organization for Intellectual Property (”PRO IP“) Act of 2007 (H.R. 4279) would significantly harshen penalties for would-be intellectual property infringers, create a new Intellectual Property Enforcement Division in the Department of Justice, and create the new ambassador level post of the White House Intellectual Property Enforcement Representative (”WHIPER“.)

The increased penalties will do little to nothing to reduce infringing activities. Despite the Recording Industry Association of America’s aggressive, high-profile approach to litigation and the huge awards extracted from people of little means, file sharing appears to be here to stay. (This week RIAA threatened 22 Universities with legal action.) Ignoring for the moment whether we as a society should be encouraging for-profit industries to siphon money from educational institutions, unregistered copyrights (the vast majority) would not benefit from these increased penalties and will continue to be essentially unprotected by U.S. law. Unlike the vast majority of countries in the world, we’ll continue to have a two-tiered system favoring large content holders. Not so PRO-IP.

However, the bill is not uniformly bad. The WHIPER is a great idea that should yield real benefits to the U.S. economy. The IP Enforcement Representative would coordinate U.S. IP enforcement policy by chairing an interagency advisory committee composed of senior representatives from the Department of Justice, Patent and Trademark Office, Office of the United States Trade Representative, and the United States Copyright Office. The IP Representative also would create a joint strategic plan to eliminate counterfeit and pirated goods from the international supply chain and to establish international standards and policies for the effective protection and enforcement of intellectual property rights.

Perhaps the IP Representative will notice the U.S. is one of the few countries where copyright registration is required in order to enforce your rights. A requirement that few small authors understand or know about. Eliminating this requirement would be the biggest step that Congress could take to strengthen and inject uniform fairness into our copyright system.

Maybe that’ll show up in the markup.

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