• IP BLAWG

    Whether Purple or Orange, It’s Not Fair Use

    Beverly A. Berneman
    5/23/23

    In Brief:  The case of the Andy Warhol Foundation and Lynn Goldsmith regarding photos of Prince has been kicking around the courts and this blog for 4 years. The Supreme Court has spoken holding that there was no fair use.

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  • IP BLAWG

    Copyright Makes a Smidge of Room for AI Adjacent Content

    Beverly A. Berneman
    5/2/23

    In Brief:  The Copyright Office will register a work that has some AI.

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  • IP BLAWG

    Public Domain Class of 2023

    Beverly A. Berneman
    1/10/23

    In Brief:  Each year, a new crop of creative works go into the public domain. This year, works created from 1927 go into the public domain. The class motto is “The Best Things in Life are Free".

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  • IP BLAWG

    Happy Halloween: Writer of “Friday the 13th” Decapitates His Original Agreement

    Beverly A. Berneman
    10/26/22

    In Brief:  An author has a right to terminate a copyright transfer after a certain number of years.

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  • IP BLAWG

    Fair Use Defense Drowns in a Desert Lake

    Beverly A. Berneman
    10/4/22

    In Brief:   A picture is worth a thousand words but using it may not pass the fair use test.

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  • IP BLAWG

    OMG AAMOF TXT Are Not ©*

    Beverly A. Berneman
    9/13/22

    In Brief: Copyright in fireworks text messages is invalid.

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  • IP BLAWG

    Oral Agreement = Copyright Infringement Litigation

    Beverly A. Berneman
    5/3/22

    In Brief:  Oral agreements with independent contractors fuel copyright infringement litigation.

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  • IP BLAWG

    All the Way Missing

    Beverly A. Berneman
    2/15/22

    In Brief:   It takes some work to prove up a missing copyright assignment.

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  • IP BLAWG

    Copyright Public Domain Class of 2022

    Beverly A. Berneman
    1/11/22

    In Brief:  Each year, a new crop of creative works go into the public domain.

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  • IP BLAWG

    Copyrighting a Trademark

    Beverly A. Berneman
    9/28/21

    In Brief:  A trademark has to meet minimum standards of creativity for a copyright registration.

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  • IP BLAWG

    SCOTUS Has Spoken on Fair Use

    Beverly A. Berneman
    4/13/21

    Oracle America, Inc. owns the copyright to the Java computer language. In 2005, Google LLC acquired Android and wanted to build a new software platform for mobile devices. To allow the programmers familiar with Java to help build the platform, Google copied about 11,500 lines of code from the Java program. These lines of code are part of a programming tool called that’s called an “Application Programming Interface (API)”. 

    Oracle sued for copyright infringement.

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  • IP BLAWG

    Fair Use Gets Transformed

    Beverly A. Berneman
    4/6/21

    In a recent blog post, I looked at the meaning of transformative use as it relates to fair use in a suit involving well-known photographer, Lynn Goldsmith, and The Andy Warhol Foundation for the Visual Arts, Inc. Lynn had taken some photos of the music artist, Prince. Vanity Fair magazine had licensed one of Lynn’s photos and commissioned Andy Warhol to create paintings from it for an article. Warhol then went a step further and used Lynn’s other photographs as the foundation for series of Prince paintings. Years later, Vanity Fair published an article using Warhol’s paintings. This was when Lynn learned about Warhol’s additional paintings. Lynn threatened to sue for copyright infringement. The Warhol Foundation brought a suit for declaratory judgment that the additional paintings were fair use. The district court held that Warhol’s treatment of Lynn’s photographs was transformative and therefore fair use.

    Andy Warhol’s art was innovative. But it may not have been transformative when it comes to fair use.

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  • IP BLAWG

    A Lot of Mine and Some of Yours

    Beverly A. Berneman
    3/16/21

    Hiller LLC provides plumbing, heating, cooling and electrical services to residential and commercial customers. Hiller was a member of Success Group International that offers management advice and customer service training. Success Group used licensed copyrighted training manuals owned by its predecessor, Clockwork IP LLC.

    Hiller decided to create its own training materials and hired an independent contractor who conducted a series of workshops and researched Hiller’s business. The end product was an HVAC technicians Guide. The Guide had original illustrations, its own content and its own arrangement of the information. Small portions of the Guide incorporated information that had been contained the Success Group training manuals. The independent contractor assigned the copyright in the Guide to Hiller.

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  • IP BLAWG

    Sometimes, It’s What You Don’t Say

    Beverly A. Berneman
    3/2/21

    The US Supreme Court won’t be weighing in on some interesting cases in the world of IP. Here are just a few of them by topic:
    Copy

    • rights in Fictional Characters
    • Right to Challenge Patents
    • Trademarks
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  • IP BLAWG

    A Useful Chalk Holder

    Beverly A. Berneman
    2/23/21

    In Brief:  Copyright does not protect “useful articles” and design patents don’t always protect against infringement.

    Sidewalk chalk has been around a long time. Lanard Toys Ltd. designed chalk holders that looked like No. 2 pencils. Lanard sold the chalk holders to distributors and toy store chains like Toys R Us.  Lanard sought and obtained both a registered copyright and a design patent.

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  • IP BLAWG

    Lucky Shot

    Beverly A. Berneman
    6/23/20

    Alex Cruz was on his way to visit his girlfriend in the Tribeca neighborhood of New York City. He heard a commotion, took out his iPhone and took a snap shot. He thought he was just taking a photo of the police subduing a crazy person. What he really caught was a picture of law enforcement taking down a suspected terrorist. Alex shared the photo with a friend who then posted the photo on Instagram.

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  • IP BLAWG

    Star Struck is Struck

    Beverly A. Berneman
    5/26/20

    Kfir Moyal is a pop artist who has created commissioned pieces for celebrities like the Kardashians, Paris Hilton, Gloria Estefan, Flo Rida and Lil’ Kim. His signature style is to take a photograph and add a glittery sheen to it.

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  • IP BLAWG

    States’ Rights: A Loss and a Win

    Beverly A. Berneman
    5/12/20

    Two recent US Supreme Court cases give a loss for the State of Georgia and a win for the State of North Carolina.

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  • IP BLAWG

    Public Exposure

    Beverly A. Berneman
    4/14/20

    For your stay at home pleasure, 2020 has granted us with a whole inventory of content that is now in the public domain.

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  • IP BLAWG

    Exceptions to Exceptions

    Beverly A. Berneman
    11/19/19

    The New Republic magazine published 44 film reviews written by famed film and theater critic, Stanley Kauffmann. The magazine didn’t hire Kauffmann to write the reviews. He wrote them, submitted them and the magazine printed them. The parties never really talked about who owned the articles. They never entered into a “work for hire” agreement.

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  • IP BLAWG

    Big Little Copyright Lies

    Beverly A. Berneman
    9/24/19

    An application to register tells the Copyright Office about you, your work and why you’re entitled to register a copyright. To further this goal, the Copyright Act requires that you include only accurate information in your copyright application. Gold Value International Textile d/b/a Fiesta Fabrics learned the consequences of not following this rule the hard way.

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  • IP BLAWG

    Scrambling for Copyright Infringement Defenses

    Beverly A. Berneman
    6/11/19

    Violent Hues Productions published a tourism guide that used a stock photograph depicting the Adams Morgan neighborhood of Washington D.C. The problem is Violent Hues used it without the permission of the photographer, Russell Brammer.

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  • IP BLAWG

    No Shortcut for Copyright Plaintiffs

    Beverly A. Berneman
    3/5/19

    In my blog post of August 1, 2017, I posed the copyright litigation dilemma: “To File or Not to File”. On March 4, 2019, the US Supreme Court resolved the dilemma once and for all.

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  • IP BLAWG

    Fun IP Facts for Halloween 2018

    Beverly A. Berneman
    10/30/18

    Even Halloween can’t escape copyright. %CUT%

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  • IP BLAWG

    Percentages Can Sink Copyright Infringement

    Beverly A. Berneman
    8/7/18

    Copyright infringement needs more than ‘sort of’ similarity. %CUT% Experian Information Solutions, Inc. registered the copyright for a database containing consumer names and addresses. Experian’s employees made some selections in adding data, reconciling discrepancies, and discarding useless information. Experian licenses access to its database to companies for use in marketing campaigns. Nationwide Marketing Services Incorporated is Experian’s competitor. Nationwide is relatively new to the market and much smaller than Experian. Experian got an offer to purchase a Nationwide’s database of names of addresses. Experian tested Nationwide’s database  against its own and came up with a 97% match rate.  Experian brought suit for copyright infringement and trade secret misappropriation against Nationwide. The Ninth Circuit Court of Appeals affirmed the district court’s order for summary judgment in Nationwide’s favor on the copyright claim. The court held that the selection and arrangement process was sufficient to create minimal protection in Experian’s database. But, Experian did not prove infringement. Neither side could produce the databases as they appeared at the time of the alleged infringement. Experian could only show an 80% match rate between the current versions of the two databases. That wasn’t enough for copyright infringement. Experian’s trade secret misappropriation claim was remanded back to the district court.

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