A perplexing question for litigators is whether copyright owners need to receive their registration before suing. In certain jurisdictions, they could file as long as they had an application on file. In others, they had to wait until a registration issued or action was taken on the application. Finally, the Supreme Court will resolve this looming issue as it agreed to hear the issue in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC.

Copyright Office Does Not Monkey Around

Selfies (self-portrait photographs) appear daily on the Internet. However, you don’t often see them taken by a monkey. There has been a lot of recent press about the ownership rights associated with a macaque monkey’s “selfie” created with a British photographer’s camera.  The monkey allegedly swiped the photographer’s camera back in 2011 while he was trekking in an Indonesian forest.  Wikimedia Commons got a hold of the photo and made it available for free, public use.  Arguing that the monkey was akin to his assistant, the photographer claimed that the photo had been misappropriated and that he had lost tens of thousands of dollars in revenue associated with this photograph that went viral. Rarely does the government react so quickly to resolve private disputes, but on Tuesday, the U.S. Copyright Office updated its Compendium of U.S. Copyright Office Practices and addressed this very issue.  The Office clarified that it “will not register works product by nature, animals or plants. . . Examples: A photograph taken by a monkey….”  In case there was any doubt, “[a] mural painted by an elephant” is also not protected. While it’s generally not advisable to take someone else’s work, for now, the works of the animal kingdom are fair game.

U.S. Copyright Office Introduces “Single Application” Registration Option

On June 28th, the U.S. Copyright Office amended its regulations on an interim basis to provide for a new registration option for applicants called the “single application.” The streamlined registration is aimed toward simplifying the process for individual authors of single works.  It cannot be used for works for hire or collective works, websites or databases.  As such, it will be interesting to see whether the public takes advantage of it.  The Copyright Office has invited public comment until August 28, 2013.

Don’t Underestimate Copyright Protection: Organizational Management Diagram Found To Be Protectable

Often the most important asset of a consulting company is its intellectual property.  As such, don’t overlook the potential to protect unique flow diagrams and/or charts that you’ve developed when developing your IP portfolio.  In late May of this year, the Tenth Circuit in Enterprise Management Ltd. V. Warrick found that an organizational management diagram was indeed eligible for copyright protection. The diagram-at-issue depicted a listing of variables and possible outcomes.  The alleged infringer incorporated a similar diagram into his course materials and consulting business. After later discovering that the diagram had been created by the Plaintiff, he gave her credit for the work at the bottom of his diagram. However, he argued that the Plaintiff’s diagram was not eligible for copyright protection because it consisted only of unprotected ideas and expressions so intertwined with those ideas that they could not be protected under the “merger doctrine.”  Although the District Court was persuaded by this argument, the Tenth Circuit disagreed.  The Tenth Circuit focused on the expressive choices that the Plaintiff had made to convey her concepts and offered that such information could have been arranged in a myriad of ways. Her selection of symbols and word choices were persuasive factors. In the end, what appeared to be a fairly mundane flow diagram was found to be eligible for copyright protection. The lesson here is if you incorporate material that you did not create into your business, make sure that you have the legal right to do so. Copyright cases are fact intensive and are not always straight forward.  

The Everyone Is Doing It Defense: A Game Of Russian Roulette

We hear it all of the time.  How is this illegal if everyone is doing it?  As I tell my children, the “everyone else is doing it” defense rarely works.  Sure, it eventually worked out for those of us old enough to remember the Betamax  home videocassette recorder battle in which consumers came out on top. However, more recent scenarios have not worked out as well for the consumer. Those who illegally downloaded movies or songs can attest to this. Now, comes Pinterest.  Copyright infringement or fair use?  While the company seems to be taking steps to address its own liability, it remains to be seen what will happen to its users.  Read a recent discussion of this issue.  Investigate the issue for yourself and don’t rely on others’ use as your sole defense should you face a claim of copyright infringement.

Five Common IP Misconceptions

In my practice over the last decade, I have seen companies fall victim time and time again to the same IP pitfalls.  Here are a five things to keep in mind when trying to build and protect your brand or technology: 1)  Just because a domain name is available with a registrar does not mean that you can use it without consequence.  2) Owning a patent does not guarantee that you can practice the invention covered by the patent. 3) Just because you paid an independent artist to create your logo doesn’t mean you necessarily own it. 4) Sending a simple cease and desist letter is not without risk. 5) Patents may not always cover what they appear to state as they sometimes contain significant printing errors. I will explore each of these topics in more detail in upcoming posts. Stay tuned.