Category Archives: Copyright

Ramey & Schwaller client Julian Olivares’ copyright infringement claim is going to trial!

On September 30, 2016, the District Court in the Middle District of North Carolina denied The University of Chicago, Margaret Greer and Elizabeth Rhodes’ Motion for Summary Judgment as to Olivares’ clam of copyright infringement, deciding that a jury would hear the case.  Trial is now set for April of 2017.  Bill Ramey of Ramey & Schwaller is quoted as saying “We are very happy for our client and we look forward to telling the jury how The University of Chicago, Rhodes and Greer copied our client’s novel.”

Julián Olivares is the creator of “Novelas amorosas y ejemplares, by María de Zayas y Sotomayor,” a critical edition of and a transformation and interpretation of Novelas amorosas y ejemplares. Notwithstanding that Olivares’ book contained a copyright notice Margaret Greer and Elizabeth Rhodes translated and the University of Chicago published at least nine stories copied from Olivares’ book.  More information about the case can be found at Olivares v. University of Chicago et al., pending in the Middle District of North Carolina under Cause No. 1:15-cv-713.

Ramey & Schwaller is a full-service intellectual property law firm working with a national client base from our Houston, Texas office.  We are dedicated to enhancing client results through efficient practice management, innovative technologies, and the use of skilled professionals.

U.S. Dept. of Commerce Recommends Copyright-Law Amendments

The U.S. Department of Commerce has issued a report recommending amendments to copyright law that purportedly would provide courts with both more guidance and greater flexibility in awarding statutory damages. The report, “White Paper on Remixes, First Sale, and Statutory Damages,” was issued by the Department’s Internet Policy Task Force and addresses:
(1) the legal framework for the creation of remixes;
(2) the relevance and scope of the “first sale doctrine;” and
(3) the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement.

The report’s proposed copyright-law amendments include a list of factors for courts and juries to consider when determining the amount of statutory damages.

The report is available at www.uspto.gov/copyright-white-paper-2016.

Ramey & Browning sues University of Chicago for copyright ingfringement

On October 17, 2014, Ramey & Browning Bill Ramey filed a copyright infringement lawsuit against the University of Chicago for its translation of Profesor Olivares’ Novelas amorosas y ejemplares in the Eastern District of Texas.  Professor Olivares, of the University of Houston, states that the translation aounts to academic piracy of a work he spent years developing.

The Maroon, the student nespaper of the University of Chicago, published an article commenting on the lawsuit.  The article can be found at http://chicagomaroon.com/2014/11/04/uchicago-press-sued-for-copyright-infringement-in-book/#disqus_thread.

Ten Points Every Lawyer Should Know About Intellectual Property

Top Ten Tips

1. Business entity selection – As attorneys, you know that the business entity your client has directly impacts their personal liability. If your client comes to you with IP, counsel them to consider entity formation.

A third party may be able to reach personal assets which have nothing to do with the business.
Ensure the separation of your personal assets from the assets of the business entity – including intellectual property rights.

2. Learn the Basics of IP. Bone up on intellectual property rights, even if you just read some books on the subject. Knowledge is power.

3. Trademark usage/registration – Have your clients analyze their business to determine what valuable trademarks they have. While trademark rights are common law rights and thus exist even if the mark is not registered, registration provides several advantages.

4. Consideration of third party intellectual property rights – When naming a line of products or designing a logo, be wary of making a choice similar to names and logos already in use.

5. Use nondisclosure agreements. Counsel your clients to use NDAs. Typical NDAs contractually obligate signatories to refrain from disclosing confidential information without the disclosing party’s expressed consent.

6. Enforcement of intellectual property rights/Don’t Sit on your rights – Once your client’s business owns the rights to intellectual property, it is important to consider enforcing them, especially trademarks.

7. Have your client fully develop their idea. Take the time to fully develop the idea before launching it into the universe of IP lawyers. When you come to the table with an idea that has been well researched, your client greatly increase the odds of attracting investors or getting lending institutions on your side.

8. Do not overestimate your position. Just because your client thinks there’s no competition out there for their business, don’t use that as an argument not to spend the money to protect your idea or obtain necessary opinions.

9. Rely on legal protection. It is impossible to keep an idea under lock and key all of the time. The good news is that the court system is increasingly recognizing the value of intellectual property and is taking steps to protect your rights of ownership.

10. Be patient. Realize that it takes time to license a patent or obtain a patent, copyright or trademark. In the meantime, you can continue to build and grow your idea under the radar.

 

USPTO October Independent Inventor Conference

USPTO (Alexandria facility)

The United States Patent and Trademark Office (USPTO) will host its 18th Annual Independent Inventor Conference on October 11-12, 2013, at the USPTO headquarters in Alexandria, Virginia.  A pre-conference workshop will be held the evening of Thursday, October 10.

The conference will address intellectual property (IP) topics relevant to inventors and small businesses.  Attendees can meet senior USPTO experts and participate in panels and breakout sessions addressing specific IP topics relevant to modern inventors and small business owners.

USPTO officials and experts will provide practical information regarding patents, trademarks, and other IP.  Successful business owners and inventors will relate their personal experiences of bringing their ideas to market. Government, legal, and business development entities representatives will discuss commercial best practices resources offered by their organizations.

The location is USPTO Campus, Madison North Auditorium, 600 Dulany St., Alexandria, VA 22314.  Directions, meeting agenda and RSVP details can be found here.

 

Ramey & Browning files electronic data destruction case under the Electronic Communications Privacy Act

Ramey & Browning files an action in Federal Court under the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act seeking damages against an employer who erased client Saman Rajaee’s personal business data from his smartphone. Federal law allows the client to recover actual damages, attorneys’ fees and statutory penalties.  The matter is styled Rajaee v. Design Tech Homes, Ltd. et al., Civil Action No. 4:13-cv-02517 (SDTX, Houston Division, August 28, 2013).

When are Two Photographs Substantially Similar for Copyright Infringement Purposes?

In Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2013), the United  States Court of Appeals for the First Circuit explained when are two photographs substantially similar for copyright infringement purposes.  The Court explained that a photograph may have protected and unprotected elements and only comparison to the protected elements is relevant when determining substantial similarity between two photographs.

Harney had photographed a girl in a pink coat riding piggyback on her father’s shoulders as they emerged from a Palm Sunday service. The photograph was published on the front page of the local newspaper.

PHOTO

 

A year later, the father and daughter became a national media sensation. The father had abducted his daughter during a parental visit and was sought by police. The father was a professional imposter who had been passing himself off as a member of the Rockefeller family and who had previous posed as a British royalty descendant, a Wall Street investment advisor, and a rocket scientist. He also was wanted for questioning regarding a 20-year-old homicide.

The father-daughter photograph was used in an FBI “Wanted” poster and was widely distributed in the media. Sony later produced a made-for-television movie based on the father’s identity deception. Sony depicted the photograph in that movie using a second photograph that was similar in some details and different in other details. Harney sued Sony for copyright infringement.

The trial court granted Sony summary judgment, ruling that no reasonable jury could find substantial similarity between the two photos. “Substantially similarity” is a necessary element of a copyright violation. The trial court ruled that the photos were not substantially similar because although they shared the factual content of the scene, the second photograph did not share the expressive elements of the first photograph. The limited sharing between the works was not enough to establish substantial similarity and copyright infringement.

In reviewing the trial court’s judgment, the United States Court of Appeals for the First Circuit noted that the two photographs shared several important features:
 a young blond girl wearing a long pink coat and light-colored tights riding piggyback on a man’s shoulders;
 the father and daughter are smiling;
 they are looking straight at the camera at roughly the same angle;
 only the father’s upper body is shown; and
 the father is holding papers in his left arm with the text of the first page facing the camera.

The First Circuit described the following as minor differences:
 in the original photograph, the girl’s coat is a darker pink;
 in the original photograph, the coat buttons are placed higher on the garment; and
 in the original photograph. the father’s jacket is a dark tweed, while it is a solid tan in the second photograph.

Significant distinctions were that:

  • the backgrounds are different
  • in the original photograph, the papers in the father’s hands are easily identifiable as the program for the church service, while the writing on the papers in the second photograph is not legible and its text is plainly different; and
  • in the original photograph, the girl is holding up a palm leaf in her left hand, but in the second photograph, both of the girl’s hands are by her sides, resting on her legs.

Sony admitted that it copied Harney’s photograph. However, copying another’s work does not invariably constitute copyright infringement. The copying must be sufficiently extensive that it renders the infringing and copyrighted works substantially similar.

It is permissible to mimic the non¬copyrightable elements of a copyrighted work. Copyright protection extends only to those components of a work that are original to the author, and a work that is sufficiently original to be copyrighted may contain unoriginal elements.

Thus, assessing substantial similarity requires close consideration of which aspects of the plaintiff’s work are protectable and whether the defendant’s copying substantially appropriated those protected elements.

The substantial-similarity inquiry requires two types of scrutiny:
(1) Dissection of the earlier work to separate its original expressive elements from its unprotected content.
(2) Followed by holistic comparison of the two works to determine whether they are substantially similar, considering only the protected aspects of the plaintiff’s work as determined by the dissection. Two works are substantially similar if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

Although the court performs the dissection analysis as a matter of law, the fact finder ordinarily determines substantial similarity. In Harney, the trial court and First Circuit held that no reasonable jury could conclude that an ordinary observer examining the two works would see the defendant’s version as a wrongful appropriation of the plaintiff’s protected expression.

Artists ordinarily have no copyright in their subject matter’s reality, and the news photographer’s stock-in-trade is depicting reality. Subject matter the photographer did not create can be viewed as facts not entitled to copyright protection. Facts do not owe their origin to an act of authorship. Because facts are discovered, rather than created, they are part of the public domain and are available to every person.

Copyright protection is limited to those aspects of the work – termed “expression” – that display the stamp of the author’s originality. A photograph of public-domain subject matter may thus be protected from copying because it involves creative expression, but the protection is limited to the work’s original elements.

Originality can exist in a photographer’s selection of elements such as
• lighting;
• timing;
• positioning;
• arrangement of elements;
• suggestions of facial expressions;
• angle;
• focus;
• film selection; and
• camera selection.

Performing the dissection analysis, the First Circuit found that Harney’s photograph involved several elements of creative expression:
 framing of the father and daughter against the backdrop of the church
 the father and daughter each holding a symbol of Palm Sunday;
 positioning the father and daughter in the middle of the frame as they look straight into the camera, and at a close distance;
 the depiction of only parts of their bodies; and
 the shadows and vibrant colors in the Photograph–which the Court speculated might be the result of Harney’s use of an electronic flash and professional editing software.

However, the Court emphasized that Harney’s photograph consists primarily of subject matter (i.e., facts) that he had no role in creating, including the photograph’s central element–the daughter riding piggyback on her father’s shoulders. Harney could not claim exclusive rights to the unprotectable, factual components of his photograph:
• the piggyback pose of the father and daughter;
• their clothing;
• the items they carried; or
• the Church of the Advent shown with bright blue sky behind it.

After dissecting Harney’s photograph, the First Circuit then addressed whether the second photograph unlawfully appropriated an impermissible portion of Harney’s original expressive elements. The Court concluded that almost none of the protectable aspects of Harney’s photograph existed in the second photograph. Though the two photographs appear similar on first glance, that impression is due largely to the piggyback pose that Harney did not create and is arguably so common that it would not be protected even if Harney had placed the father and daughter in that position. The two photographs are different in lighting and coloring, giving them aesthetically dissimilar impacts: Harney’s photograph has vivid colors and distinct shadows, while the second photograph is washed out and far less attractive or evocative.

Though the second photograph copies the father and daughter’s placement in the frame, locating a photograph subject in the middle of a frame is an element of minimal originality and alone is insufficient to find substantial similarity.

Although the two photographs are similar, as Sony intended, infringement is determined not merely by whether the copy mimics the work, but also, more importantly, by whether the similarity arises from protected elements of the original work. Sony copied little of Harney’s original work –only the placement of the father and daughter in the photograph — and no jury could find substantial similarity solely from that copying. Moreover, given the differences in background, lighting and religious detail, a reasonable jury comparing the entirety of the two works could not conclude that the ordinary observer would regard their aesthetic appeal as the same.