LawTalk Blog

DEFINITION OF COPYRIGHT INFRINGEMENT SUBJECT TO CHANGE

Regarding copyright infringement liability for music file sharing, is it enough that the defendant simply made the music available to others, or must the plaintiff (the RIAA) prove that actual distribution took place?

Last year, Jammie Thomas was found liable for copyright infringement based on songs the RIAA said it found in her computer. But now, as the WSJ reports, Judge Davis believes that his jury instructions might have been wrong. Davis told the jury that merely making songs available online for distribution to others was a copyright violation and that the record companies didn’t have to prove distribution took place. A federal district-court case in Phoenix recently ruled that making songs available was not copyright violation. Therefore, Judge Davis may give Jammie Thomas a new trial.

According to a spokesman for the RIAA, “Whatever the court decides, it was not the ‘making available’ issue that prompted a jury to decide that Ms. Thomas had massively and deliberately committed music theft,” “And regardless of this particular question, we do have complete downloads of songs in the case against Ms. Thomas, as we do in all our download cases.”

Possible End to Budweiser Trademark Dispute

The acquisition of Anheuser-Busch Cos. Inc. by InBev NV could increase the chances of settlement in the century-long trademark dispute over the Budweiser brand.

Anheuser-Busch and state-owned Czech brewer Budejovicky Budvar NP are currently involved in several lawsuits over the use of the Budweiser name. It seems that so many personal issues had become intertwined with the legal issues over the last 100 years that it had become hard to negotiate.

According to Anheuser-Busch’s attorney, Joe Dreitler, “The bottles look different, the cans look different and they taste different.” “They are very different products, and the people who drink them are looking for a very different experience.”

Dreitler added that the key to a resolution would be for both sides to agree they can co-exist. “I think it would be an interesting ending to a long lawsuit,” Dreitler said. “It would be sort of a casebook study of how you can resolve things even if they’ve gone on for 100 years.”

FALSE REPORTS OF DEVO LAWSUIT AGAINST MCDONALD’S

Several media sources have recently claimed that Devo, the post-punk band known for its song “Whip It,” was suing McDonald’s for appropriating the band’s signature “Energy Dome” hat for an American Idol-branded happy-meal toy.

According to the news reports, Devo bass player Gerald Casale allegedly stated, “This New Wave Nigel doll that they’ve created is just a complete Devo rip-off and the red hat is exactly the red hat that I designed, and it’s copyrighted and trademarked.” He reportedly added, “We’re in the midst of suing them. They didn’t ask us anything. Plus, we don’t like McDonald’s, and we don’t like American Idol, so we’re doubly offended.”

As reported by the Wall Street Journal Law Blog, Jennifer Gassen, who is a lawyer at the law office of David Blau, Devo’s attorney, wrote in an email:

“Please be advised that the story about a civil action by Devo against McDonald’s is a rumor and is completely false. No lawsuit has been filed and no litigation is pending. Any issue with the McDonald’s “New Wave Nigel” promotion has been amicably resolved on mutually agreeable terms.”

 

“New Wave Nigel” Happy Meal toy. 

COPYRIGHT INFRINGEMENT OR FAIR USE?

Contemporary music performer Girl Talk (Gregg Gillis) has gained popularity in recent years for his unique form of musical collages, known as “mash-ups,” which use a variety of rapid-fire samples to create innovative song structure. According to the New York Times, Gillis did not clear any of the 300-plus samples on his new album "Feed the Animals," but has instead claimed that his music is protected by fair use under copyright law.

Congressman, Rep. Mike Doyle, D-Pa., has publicly stated that Gillis is indeed covered by fair use. However, many lawyers and legal theorists argue that Gillis isn't commenting on another artist's work so much as repurposing it into his own. Gillis told the Times, "I get swept up in thinking of it as another album, but I'm certainly conscious of the issues it raises."

SECOND CIRCUIT APPROVES DVR TECHNOLOGY

On August 4, 2008, The Second Circuit decided to throw out a lower court’s ruling that blocked Cablevision from introducing a new remote-storage DVR system. The Cablevision DVR lets customers store recorded television shows on a central server, rather than on a hard drive in the customers’ home, like standard DVRs.

Cablevision argued that there was no difference between the remote-storage system and a standard DVR, so it shouldn’t be required to pay additional licensing fees.

Judge John Walker agreed, stating “Because each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, we conclude that such transmissions are not performances ‘to the public,’ and therefore do not infringe any exclusive right of public performance.”

RAPPER 50 CENT SUES TACO BELL FOR TRADEMARK INFRINGEMENT

The rapper known as 50 Cent (Curtis Jackson) is suing Taco Bell, for trademark infringement, alleging that the restaurant drafted a fake letter allegedly asking Jackson to change his name to “79 Cent,” “89 Cent” or “99 Cent” in order to publicize its “79-89-99 Cent Why Pay More Value Menu.”

Purportedly, Taco Bell released the letter to the national press in June before sending it to Jackson, “Simply put, Taco Bell knew that it would likely have had to pay Jackson a multi-million-dollar fee to get his endorsement, even if he had agreed to do it — which is in doubt,” says the suit, which was filed by Reed Smith’s Peter D. Raymond and Wallace B. Neel. “Rather than face rejection or pay fair value, Taco Bell chose to steal his endorsement and to enjoy all the publicity of being associated with a mega-star while bearing none of the costs.”

A spokesman for Taco Bell said: “We made a good faith, charitable offer to 50 Cent to change his name to either 79, 89 or 99 Cent for one day by rapping his order at a Taco Bell, and we would have been very pleased to make the $10,000 donation to the charity of his choice.”

FACEBOOK SUES STUDIVZ

Facebook recently sued StudiVZ, a German company that claims to be “the most successful social network in Germany, Austria and Switzerland,” alleging that StudiVZ copies “the look, feel, features and services” of the Facebook site. Facebook accused StudiVZ of copying entire portions of the site’s design, including features such as Facebook’s “Fun Wall”, which allows users to leave messages on each other’s profile pages. Facebook reportedly claims that any differences are “nominal,” and accuses StudiVZ of merely “replacing Facebook’s blue colour scheme with a red one.”

StudiVZ asked a German court in Stuttgart to declare that Facebook’s claims are without merit. According to this Reuters report, StudiVZ claims Facebook is suing them because Facebook has failed to transplant its success to the German market. “Their strategy appears to be: ‘If you can’t beat them, sue them,’” said Marcus Riecke, StudiVZ’s CEO.

“Passing Off” One Product for Another

In the 1930s,The Coca-Cola Company helped establish "passing-off" laws to disallow the substitution of Pepsi-Cola when customers specifically ordered Coca-Cola. “Passing off” occurs when a customer orders a specific brand or product, but receives a substitute beverage without being notified of the substitution or given the opportunity to accept or reject the stand-in product. While “passing off” was originally intended to protect against using rival products, these days, the majority of cases focus on substituting cheaper, generic products for name brands. In 2003, Red Bull filed a suit in federal court against the San Diego restaurant Moondoggies for “passing off” generic energy drinks as Red Bull to customers. Red Bull obtained the permanent injunction against Moondoggies, and Moondoggies paid Red Bull $50,000 to settle the case. But, in May 2007 and July 2007, Red Bull investigators discovered that Moondoggies was again “passing off” generic energy drinks as Red Bull. Red Bull immediately asked the court to hold Moondoggies in contempt for violation of the permanent injunction. While Red Bull and Moondoggies eventually agreed to a judgment for contempt for an undisclosed amount against Moondoggies, on July 31, 2008, Moondoggies was held in contempt for continuing to “pass off” generic drinks as Red Bull to customers. In addition to Moondoggies, Redbull has settled similar suits with Florida-based Dicey Riley’s for $75,000 and Texas-based Tavern for $150,000 and in addition, won a judgment against Chicago-based Wet nightclub for $679,827.