Does publication on the web give rise to “access” in copyright infringement analysis? (Evan Brown, 30 Jan 2014) – Plaintiff sued defendant for copyright infringement. Defendant moved for judgment on the pleadings (which is essentially the same thing as a motion to dismiss for failure to state a claim except it is after defendant files an answer). Defendant asserted that plaintiff had not pled copyright infringement because under the Seventh Circuit’s “substantial similarity” test to demonstrate infringement, plaintiff had not pled defendant had “access” to the allegedly infringed work. In some copyright infringement cases, a plaintiff may not have direct evidence that the defendant committed infringement. In those situations, a finder of fact may infer that infringement has occurred when it is shown that: (a) the defendant had access to the copyrighted work; and (b) the accused work is substantially similar to the copyrighted work. In this case, defendant argued it never had access to plaintiff’s designs that it was alleged to have infringed. But the court considered the online publication, 11 years ago, of plaintiff’s designs, to find access for purposes of the motion for judgment on the pleadings: “With regard to online publication, in 2003, [plaintiff] first published the [allegedly infringed work] at [its website]. The Internet already was widely used and accessible at that time. Because the non-movant is entitled to reasonable favorable inferences in evaluating a motion for judgment on the pleadings, the online publication is enough to establish access for purposes of denying [defendant’s] motion for judgment on the pleadings.”

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Image courtesy of FreeDigitalPhotos.net/Stuart Miles.

Tattoo artists are asserting their copyright claims (ABA Journal, 1 Jan 2014) – One day you’re feeling bold, or perhaps temporarily insane, and you walk into a tattoo parlor to get inked up. Congratulations, you’re the proud owner of the art now displayed on your skin and you can flaunt it however you wish. Not so fast. A growing body of case law derived from a series of high-profile lawsuits suggests that ultimately it’s the tattoo artist-not the person who bears the tattoo-who owns the rights to that tattoo. Copyright law protects original works of authorship fixed in any tangible medium of expression, including anything from paint on a canvas to sculpted clay to a piece of music. And now it’s increasingly clear that the law also applies to ink on skin. In 2012, a tattoo artist who inked mixed-martial-arts fighter Carlos Condit sued video game maker THQ Inc. for depicting Condit’s lion tattoo on a game character resembling the fighter. Also, the National Football League Players Association has warned players to seek copyright waivers from their tattoo artists to guard against lawsuits in the event images of the tattoos are used-intentionally or not-in advertisements, video games and other media. Lawyers foresee copyright waivers becoming a fixture in tattoo parlors. “I don’t doubt that in many larger tattoo parlors it will become standard that some type of document is presented to those who are going to have tattoos put on them stating that those tattoos have been created by the tattoo artist or the parlor,” says entertainment lawyer Jerry Glover of Leavens, Strand, Glover & Adler in Chicago.

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Image courtesy of FreeDigitalPhotos.net/mapichai.

Copyright Office calls for congress to reconsider royalties for artists (NYT, 16 Dec 2013) – The last time the United States Copyright Office examined the issue of whether visual artists should receive a share of the profits when their work is resold, in 1992, it concluded that resale royalties – known internationally by the French term droit de suite – were not a good idea. Now, after a recent re-examination of the issue, the Copyright Office has reversed itself. In a report issued Friday, it recommended that painters, illustrators, sculptors, photographers and the like deserve a royalty when their work is resold at a profit. Acknowledging that the current system leaves visual artists at a practical disadvantage relative to other creators such as writers or composers, the office urged Congress to “consider ways to rectify the problem” and give artists a financial interest in the future sale of their work. The office noted that in the past two decades, resale royalties have become more common around the globe, with more than 70 countries adopting some version of the droit de suite rule. A bill to institute a resale royalty was introduced in 2011 by New York Representative Jerrold Nadler, but it failed to gain support. Mr. Nadler is supporting a revised version of his bill, named the Equity for Visual Artists Act. The only state to have a resale royalty law was California, but in 2012, a federal judge struck down the law as unconstitutional.

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Image courtesy of FreeDigitalPhotos.net/Grant Cochrane.

Creative Commons next generation licenses — Welcome version 4.0! (Creative Commons, 25 Nov 2013) – We proudly introduce our 4.0 licenses, now available for adoption worldwide. The 4.0 licenses — more than two years in the making — are the most global, legally robust licenses produced by CC to date. We have incorporated dozens of improvements that make sharing and reusing CC-licensed materials easier and more dependable than ever before. The 4.0 licenses are extremely well-suited for use by governments and publishers of public sector information and other data, especially for those in the European Union. This is due to the expansion in license scope, which now covers sui generis database rights that exist there and in a handful of other countries. Among other exciting new features are improved readability and organization, common-sense attribution, and a new mechanism that allows those who violate the license inadvertently to regain their rights automatically if the violation is corrected in a timely manner. You can find highlights of the most significant improvements on our website, track the course of the public discussion and evolution of the license drafts on the 4.0 wiki page, and view a recap of the central policy decisions made over the course of the versioning process.

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Image courtesy of FreeDigitalPhotos.net/lamnee.