Second Circuit Narrows ‘Red Flag Knowledge’ Exception to DMCA’s Safe Harbor Protections for ISPs

A photo by Jeff Sheldon. unsplash.com/photos/eOLpJytrbsQIn a long-standing case brought against the video platform Vimeo by several music publishers, the U.S. Court of Appeals for the Second Circuit recently set the bar high for copyright owners to succeed in their infringement claims against service providers based on allegations of “red flag knowledge.”

The Second Circuit, shedding some light on what is needed to establish red flag knowledge, rejected the publishers’ argument that Vimeo was not entitled to the Digital Millennium Copyright Act’s (DMCA) “safe harbor” protections for numerous videos on Vimeo’s platform that included their copyrighted music because the facts and circumstances made the infringements apparent. Continue Reading

A PRIVATE PARTY TOO BIG TO BE PRIVATE

A photo by Daniel Robert. unsplash.com/photos/MRxD-J9-4psThe Danish court has recently decided that a party may be too large to be considered private, at least when it comes to the understanding of the wording “Public performance” in Danish copyright law. The court therefore ruled that the staff party held by Novo Nordisk should be considered as public in connection to the Danish Copyright Act, and therefore Novo should pay Koda for the use of musical work and text.  

Danish copyright law implements a range of EU directives, including directive 93/98/EEC concerning harmonizing the term of protection of copyright and certain related rights, and directive 92/100/EEC on rental rights and lending rights and on certain rights related to copyright in the field of intellectual property.  Continue Reading

What’s Your Evidence? The Danger of Hearsay Evidence in IP Litigation

iStock_000011931148XSmallIn Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, the Federal Court of Appeal (“FCA”) recently overturned a substantial damages award in a pharmaceutical patented medicines action on the basis that the trial judge admitted improper hearsay evidence. This is an important reminder that the hearsay rule of evidence is alive and well.

At trial, only one witness was called to testify in support of damages and he did not have actual firsthand knowledge of the purported facts to which he was testifying. Instead the witness could only testify to the oral and written statements of others.  The FCA ruled that this evidence was hearsay, and therefore inadmissible.

Hearsay evidence is an oral or written statement made by a party who has not come to court to testify. An example of oral hearsay is a witness testifying that “John told me he would give me $100”. This is hearsay because the author or speaker of these statements is not present in court to testify to the truth of the statement. Whether or not the statement is admissible depends on the use of that statement. If the purpose of calling the hearsay evidence is to prove the truth of the statement, then the statement is inadmissible. Therefore, in this example, the proper way to prove that John would give the witness $100 is to call John as a witness to testify to the truth of that statement; otherwise, the statement cannot be used to prove that John would have given the witness any money. Continue Reading

Why Register Your Copyright?

iStock_000003908491_LargeSuppose that you have expressed your idea into a tangible form such as producing a video.  Although your copyright exists upon the moment of creation, should you register your copyright on the video with the U.S. Copyright Office?  Suppose you don’t and later you find out that a competitor has posted a copy of your video on their website.  Should you register your copyright?  The answer is YES!

Let’s suppose you have created a video such as how to design a particular product.  The video has value because it draws interested persons to your website.  However, you did not register your copyright in the video with the U.S. Copyright Office before posting it on your website.  Now, six months has passed and a competitor has obtained a copy of your video and has posted it on its website to draw traffic from your website to their website.  What can you do to prevent this situation from continuing?

First, you need to register your copyright on the video with the U.S. Copyright Office before you can sue for infringement.  Under 17 U.S.C. § 411, no civil action for infringement of a copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made. Continue Reading

“…if you listen very hard…”: Stairway To Heaven Verdict May Have Unblurred Lines In Music Infringement Cases

Stairway leading up to bright light

Among the last few lines of Led Zeppelin’s rock ballad Stairway to Heaven are the lyrics “And if you listen very hard/The tune will come to you at last./When all are one and one is all…”  Spirit guitarist Randy Wolfe brought suit against Led Zeppelin for copyright infringement, apparently thinking that one did not even have to listen very hard to hear the similarities between the Zeppelin song and his song Taurus after a side-by-side comparison.  After the recent victory of Marvin Gaye’s heirs in the Blurred Lines suit against Robin Thicke and Pharrell Williams, where the similarities were, to many, not as striking when the songs were juxtaposed, the Spirit plaintiffs may have had visions of victory and “all that glitters is gold.”  But, last month, a California jury rejected the Wolfe claim, and “it really makes me wonder” what the implications may be for music copyright infringement claims. Continue Reading

Implications of Brexit on Trademarks in the EU

Brexit jigsaw puzzle conceptThe United Kingdom’s vote on June 23, 2016 to withdraw from the European Union has left many issues in flux, including the rights of owners of European Union Trademark registrations (EUTMs), formerly Community Trade Marks (CTMs). While details of the separation have yet to take shape, below are some points to keep in mind: Continue Reading

“Bripxit” – IP impacts of UK’s referendum results

Brexit jigsaw puzzle concept

Just over a week ago, the population of the UK voted in a referendum to leave the European Union.  This was something of a shock, particularly for those of us in the legal profession who get to appreciate the effects that EU harmonisation of law can bring for our clients.

The result is starting to sink in, so I thought I would let you have my thoughts on what effect I think this is going to have on intellectual property rights in the UK. Continue Reading

Nuthin’ but a Leaf Thang – Toronto Maple Leafs take issue with Snoop Dogg’s trade-mark application for LEAFS BY SNOOP Logo

photo-1445445342298-0b6cc73cba63Maple Leaf Sports & Entertainment Partnership (“MLSE”), the parent company of the National Hockey League’s Toronto Maple Leafs, has requested an extension of time to oppose a U.S. trade-mark application filed by one Calvin Broadus – better known as Snoop Dogg (“Snoop”) – for a logo featuring the words LEAFS BY SNOOP on a leaf-shaped background.

MLSE is the owner of numerous trade-mark applications and registrations in Canada and the U.S. for different iterations of the Toronto Maple Leafs logo, for use with a variety of clothing and souvenir related goods.

For side-by-side comparison, below is Snoop’s logo next to the most recent version of the Toronto Maple Leafs logo.

Mark Image               Mark Image Continue Reading

Who Are Fashion Industry And Others Cheering For?

photo-1457972703743-4a6585c42ed8The United States Supreme Court has decided to address in next term an important question for the fashion industry—namely when apparel can be protected by copyright law.  In agreeing to hear the case of Star Athletica LLC v. Varsity Brands Inc., case number 15-866, in the Supreme Court of the United States, the Court has accepted the challenging of resolving “the single most vexing, unresolved question in all of copyright,” as the petitioner describes it.  There are, of course, many reasons why this question has been so vexing, and many in the apparel industry who have been vexed by it.

At its base, apparel has generally not been protectable under United States copyright law because apparel is considered a kind of “useful item” that cannot be protected by copyright law.  The circuit court of appeals nonetheless allowed the copyright claims of Varsity Brand Inc. to proceed concerning its cheerleading uniforms because Varsity’s particular chevron-and-stripe designs were “conceptually separable” enough from the underlying clothing that they could be eligible for copyright protection.  But exactly what the legal test was, or should be, for such separable-ness has proved a difficult question, one which the dissenting circuit judge said reflected “The law in this area is a mess — and it has been for a long time.” Varsity Brands, Inc. v. Star Athletica, LLC, 799 F. 3d 468, 496-97 (6th Cir. 2015).   The Supreme Court has taken the case to sort that out. Continue Reading

New Fee Proposal for Trademarks in Canada

Happy Canada Day red silk leaves in shape of Canadian Flag on white shabby chic wood table.

Happy Canada Day red silk leaves in shape of Canadian Flag on white shabby chic wood table.

The Canadian Intellectual Property Office (CIPO) has published a Fee-for-service proposal (the Proposal), seeking public input by July 5, 2016.  The Canadian government significantly amended the Trade-marks Act (the Act) in 2014, in order for Canada to accede to the Singapore Treaty, the Nice Agreement and the Madrid Protocol. Those amendments have not yet come into force, however, pending the adoption of new Regulations on various matters, including fees.  The Proposal is the first step in adopting new Regulations on the fees that will be applicable. Continue Reading

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