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U.S. Intellectual Property and New Media Law Update A GAME IMAGE Sony Computer Ent. America, Inc. v. Bleem, LLC, et al. (Ninth Cir. - May 4, 2000) FOOTBALL ON HIGH National Football League v. Primetime 24 Joint Venture (Second Cir. - April 28, 2000) MIDNIGHT IN THE GARDEN OF COPYRIGHTS Jack Leigh v. Warner Brothers, Inc. (Eleventh Circuit - Decision: May 25, 2000) COPYRIGHTS IS A WONDERFUL THING Three Boys Music Corporation v. Michael Bolton, et al. (Ninth Circuit - Decided: May 9, 2000) A GAME IMAGE Sony Computer Ent. America, Inc. v. Bleem, LLC, et al. (Ninth Cir. - May 4, 2000) For those who have never blasted a space alien, personal video games come in two basic varieties. Console games played on a dedicated gaming console and PC games which are played on personal computers. The Plaintiff (Sony) markets its PlayStation and dedicated game discs for use on the PlayStation. Defendant has developed a software emulator that allows one to play PlayStation games on a personal computer. In other words, it translates the specialized console instructions into PC-speak, so to speak. One does not have to buy a PlayStation console in order to enjoy the Plaintiff's PlayStation games. The quality of the games' graphics are improved since a computer is capable of greater resolution than a television screen. A certain segment of the public avoids buying a PlayStation while a second sub-set of the public, which already has a PlayStation, may still play the games that they purchased on their PC for improved graphics. The end result: emulators may actually increase sales of Sony game discs, but will reduce sales of consoles. At this level the Ninth Circuit faces the challenge presented by Defendants' print media advertisements which show comparative screen shots of Sony PlayStation games as seen from the PlayStation and as seen from a PC. The use of such advertisements were preliminarily enjoined below. There is only one issue, whether such use of a screen shot would fall under the fair use exception. The exception is to allow activities such as criticism, comment, news reporting, teaching, scholarship or research. The fact that the use was commercial use does not necessarily bar the application of the Fair Use Doctrine as it is one of a number of factors to be considered. The Ninth Circuit noted that use in comparative advertising is more likely to lead to a conclusion of fair use than other commercial use circumstances. The Court also noted that a screen shot is a very small amount of the video game and that it is of little substance to the overall copyrighted work. On the other side, the Court noted that Defendants' emulator competed directly with the Sony PlayStation console, even though one was software and the other hardware. Thus, sales of the emulator would directly effect Sony's bottom line. However, when one looks to the nature of the competition, it is not in screen shots. Beyond this, use in comparative advertising, while it may have economic effect, is not the type of economic effect that was contemplated in the Fair Use Doctrine. In other words, the use would not affect Sony's ability to do with its screen shots whatever it chooses to do. If sales of Sony's consoles drop, it would be due to the Defendants' emulator's technical superiority over the PlayStation console, not because Defendants used screen shots illustrate that comparison. The Ninth Circuit thus found that the District Court had abused its discretion in granting a preliminary injunction. The decision, however, was limited with respect to the Defendants' use of screen shots that Defendants generated by taking actual images of Sony's game from a television screen. The decision can be viewed at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9917137 FOOTBALL ON HIGH National Football League v. Primetime 24 Joint Venture (Second Cir. - April 28, 2000) As many a spouse rues, the National Football League televises most of its weekly football games. Defendant is a satellite carrier that makes secondary transmissions of these copyrighted television network programs by satellite transmission. It is licensed only to United States households that do not have adequate over-the-air broadcast reception for prime television stations, i.e., unserved households. Despite objection from Plaintiff NFL, the Defendant transmits the game to its subscribers throughout Canada. Defendant argues that Canadian law permits such rebroadcasting and the United States law is not applicable since the public display of performance of the audio-visual work is outside the United States. The Second Circuit essentially told the satellite company that they got it wrong. Congress intended the definition of public and performance to encompass each step in the process by which a protected work winds its way to its audience. Under such an analysis, Defendant's uplink transmission of signals captured in the United States is a step in the process by which Plaintiff's protected work gets its way to the public audience and, when used to transmit to Canada, is violating Plaintiff's rights. The decision can be viewed at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=999244 MIDNIGHT IN THE GARDEN OF COPYRIGHTS Jack Leigh v. Warner Brothers, Inc. (Eleventh Circuit - Decision: May 25, 2000) This case involves the use of a photograph used in connection with the book and movie Midnight in the Garden of Good and Evil. The original was a photograph of a sculpture in the Bonaventure Cemetery known as the Bird Girl. The photographer licensed the use of the photograph for the book cover, but retained ownership of the copyright in the photograph. In 1997, Defendant Warner Brothers produced a movie based on the book which prominently used a replica of the Bird Girl statue and positioned it in another section of the cemetery. A number of stills from the movie feature the Bird Girl in a promotional photograph and nearly identical pictures on the goodandevil web site and at the beginning and end of the movie. Plaintiff alleged copyright infringement. The District Court granted Warner Brothers' motion to stay all discovery and later granted summary judgment for the Defendant except for a claim pertaining to the Internet icon which was later settled. The Eleventh Circuit noted the Plaintiff's copyright did not cover the appearance of the statue itself or the cemetery locale since Plaintiff had no right in either. The copyright also did not cover the association of the statue with the Midnight story. As noted by the District Court, the elements of artistic craft protected by the copyright was the selection of lighting, shading, timing, angle and film. The Eleventh Circuit found that the District Court was correct in holding as a matter of law that the film sequence featuring the Bird Girl statue were not substantially similar to protected elements of the photograph. Different weather conditions were involved, different cropping, different angles were used throughout the film. Thus, the film sequences had nothing in common with the photograph except the non-copyrighted statue itself. On the other hand, the still photographs are closer. There are undeniable significant differences between the pictures: the statue is smaller and more distant in most of the Warner Brothers' pictures than in the copyrighted photograph and also the vegetation and headstone in the foreground are more prominent. The Bird Girl is approximately the same size only on the soundtrack cover. Lighting and contrast is more extreme in the Defendant's pictures. Finally, Defendant added elements in some of its images that are absent from the photograph, such as green or orange tinting, a celtic cross and a tree, etc. However, there is much in common between them: low positioning, angling up so the contents of the bowl in the statue's hands remain hidden, hanging Spanish moss borders on the top of the photograph, the statue is centered, etc. The Eleventh Circuit found that the similarities are significant enough to preclude summary judgment. Substantial similarity is a question of fact in this case. The Plaintiff also attempted to claim right in the photograph as a trademark for his other work and for his workshop and exhibits. Since all these uses occurred after the release of the film, they could not show prior trademark rights. Accordingly, summary judgment on this issue was appropriate. The decision can be viewed at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=9910087OPN COPYRIGHTS IS A WONDERFUL THING Three Boys Music Corporation v. Michael Bolton, et al. (Ninth Circuit - Decided: May 9, 2000) In 1994, a jury found that Michael Bolton's 1991 pop hit "Love is a Wonderful Thing" infringed the copyright of the 1964 Isley Brothers song of the same name. The jury awarded $5.4 million. Bolton and his cohorts appealed to the Ninth Circuit arguing that the District Court erred in finding, inter alia, sufficient evidence to support the jury's finding of access and that Defendant could not deduct its tax liability. The Ninth Circuit affirmed the original decision. Bolton's reputation as a popular singer/songwriter was based in part by reviving the soul sound of the 1960s and he included many old songs in his re-orchestration. From the opinion, one has the feeling that Judge Nelson may have liked the Isley Brothers better than Bolton. With regard to access, all that is required is an opportunity to view or to copy Plaintiff's work. That opportunity is a reasonable opportunity (or a reasonable possibility). In music cases, typically, all that is required to prove access is that the work was widely disseminated through sales of sheet music, records and radio performances. In 1966, when the song was released, Bolton was 13 and into Black singers. He was an Isley Brothers fan. The Isley Brothers' theory is weakened by the 25 year gap between the two events and the fact the song itself was not a hit, appearing only on a single that did not make the top 100. At the end of the day it was a question of fact to be left to the jury and the jury had made its decision. On the question of profits, the burden lay on the Defendant to prove what percentage of their profits was not attributable to the Isley Brothers "Love is a Wonderful Thing." Since the song was the lead song of the album and there was evidence as to apportionment on that basis, the jury's findings should not be overturned that the song was entitled to 28% of the album profits. The income tax question is an open end question in the Ninth Circuit. The Supreme Court has held that willful infringers could not deduct income tax, but left open the possibility that non-willful infringers could deduct their income tax from the profits. The circuits are split on this issue. Here, two of the infringers, Bolton and his co-writer, could deduct their taxes as non-willful infringers. Sony was barred from deducting taxes since they had a loss carry-over and never actually paid taxes. Ain't tax law wonderful. The decision can be reviewed at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9755150 |
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