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SELECTED INTELLECTUAL SELECTED INTELLECTUAL PROPERTY ISSUES FOR PROPERTY ISSUES FOR
CONTENT DISTRIBUTORSCONTENT DISTRIBUTORS
Professor F. Jay DoughertyProfessor F. Jay Dougherty
Loyola Law School, Los Loyola Law School, Los AngelesAngeles
IPED Symposium-Nov.1, 2007IPED Symposium-Nov.1, 2007
SELECTED IP TOPICSSELECTED IP TOPICS
CONTENT OWNERSHIP UNDER CONTENT OWNERSHIP UNDER COPYRIGHTCOPYRIGHT COLLABORATIVE CONTENTCOLLABORATIVE CONTENT
DIGITAL MUSIC RIGHTSDIGITAL MUSIC RIGHTS SECONDARY LIABILITY: P2P FILE SECONDARY LIABILITY: P2P FILE
SHARING AND MUSICSHARING AND MUSIC RIGHT OF PUBLICITY ISSUES IN RIGHT OF PUBLICITY ISSUES IN
VIDEOGAMESVIDEOGAMES
CONTENT OWNERSHIP: A CONTENT OWNERSHIP: A PRIMERPRIMER
COPYRIGHT: A BUNDLE OF EXCLUSIVE COPYRIGHT: A BUNDLE OF EXCLUSIVE RIGHTS IN WORKS OF EXPRESSIONRIGHTS IN WORKS OF EXPRESSION
WHAT IS THE ORIGINAL EXPRESSIVE WORK? WHAT IS THE ORIGINAL EXPRESSIVE WORK? WHO ORIGINATED IT?WHO ORIGINATED IT?
COPYRIGHT VESTS INITIALLY IN THE AUTHOR COPYRIGHT VESTS INITIALLY IN THE AUTHOR WHO ORIGINATES THE EXPRESSIONWHO ORIGINATES THE EXPRESSION CONCEPT/EXPRESSION/FIXATION ISSUESCONCEPT/EXPRESSION/FIXATION ISSUES SPECIAL RULES FOR “WORKS MADE FOR HIRE” SPECIAL RULES FOR “WORKS MADE FOR HIRE”
AND “WORKS OF JOINT AUTHORSHIP”AND “WORKS OF JOINT AUTHORSHIP”
WORKS MADE FOR HIREWORKS MADE FOR HIRE
ESSENTIALLY, WHERE SOMEONE OTHER THAN ESSENTIALLY, WHERE SOMEONE OTHER THAN THE CREATOR IS THE MOTIVATING FORCE FOR THE CREATOR IS THE MOTIVATING FORCE FOR THE WORK AND IT IS CREATED AT ANOTHER’S THE WORK AND IT IS CREATED AT ANOTHER’S EXPENSEEXPENSE
2 TYPES2 TYPES WORKS CREATED BY AN “EMPLOYEE” WITHIN WORKS CREATED BY AN “EMPLOYEE” WITHIN
THE SCOPE OF EMPLOYMENTTHE SCOPE OF EMPLOYMENT SPECIALLY COMMISSIONED (INDEPENDENT SPECIALLY COMMISSIONED (INDEPENDENT
CONTRACTOR) WORKS, UNDER CERTAIN CONTRACTOR) WORKS, UNDER CERTAIN CIRCUMSTANCESCIRCUMSTANCES
NOTE: RULES CHANGED ON JAN. 1, 1978NOTE: RULES CHANGED ON JAN. 1, 1978 NOTE: IMPORTANT ALSO BECAUSE NO STATUTORY NOTE: IMPORTANT ALSO BECAUSE NO STATUTORY
TERMINATION OF GRANTSTERMINATION OF GRANTS
EMPLOYEE WORKSEMPLOYEE WORKS
WHERE WORK CREATED BY EMPLOYEE WITHIN SCOPE OF EMPLOYMENT, WHERE WORK CREATED BY EMPLOYEE WITHIN SCOPE OF EMPLOYMENT, THE EMPLOYER IS DEEMED THE “AUTHOR” FOR U.S. COPYRIGHT THE EMPLOYER IS DEEMED THE “AUTHOR” FOR U.S. COPYRIGHT PURPOSES, AND OWNS THE COPYRIGHT UNLESS THEY AGREE PURPOSES, AND OWNS THE COPYRIGHT UNLESS THEY AGREE OTHERWISE IN WRITING. 1976 ACT §201(b).OTHERWISE IN WRITING. 1976 ACT §201(b). Nb: Many foreign countries do not recognize “work for hire” under Nb: Many foreign countries do not recognize “work for hire” under
their own laws.their own laws. WHAT IS AN “EMPLOYEE”?WHAT IS AN “EMPLOYEE”?
DIFFERING VIEWS UNTIL DIFFERING VIEWS UNTIL COMMUNITY FOR CREATIVE NON-VIOLENCE COMMUNITY FOR CREATIVE NON-VIOLENCE v. REIDv. REID (USSC, 1989) (USSC, 1989)
NOT JUST FORMAL SALARIED EMPLOYEES. MULTI-FACTOR TEST NOT JUST FORMAL SALARIED EMPLOYEES. MULTI-FACTOR TEST FROM RESTATEMENT (2d) OF AGENCY (e.g., .RIGHT TO CONTROL FROM RESTATEMENT (2d) OF AGENCY (e.g., .RIGHT TO CONTROL MANNER & MEANS OF WORK, PAYROLL FORMALITIES, BENEFITS, MANNER & MEANS OF WORK, PAYROLL FORMALITIES, BENEFITS, TAX TREATMENT, MANY OTHERS)TAX TREATMENT, MANY OTHERS)
WHAT IS “SCOPE OF EMPLOYMENT”? SEE, REST.(2d) AGENCY.WHAT IS “SCOPE OF EMPLOYMENT”? SEE, REST.(2d) AGENCY. WORK OF THE TYPE EMPLOYEE HIRED TO PERFORMWORK OF THE TYPE EMPLOYEE HIRED TO PERFORM CREATION SUBSTANTIALLY WITHIN AUTHORIZED TIME AND SPACE CREATION SUBSTANTIALLY WITHIN AUTHORIZED TIME AND SPACE
LIMITS (nb: MIGHT EXTEND TO WORK AT HOME)LIMITS (nb: MIGHT EXTEND TO WORK AT HOME) ACTUATED AT LEAST IN PART BY SERVING THE EMPLOYER’S PURPOSEACTUATED AT LEAST IN PART BY SERVING THE EMPLOYER’S PURPOSE
COMMISSIONED WORKSCOMMISSIONED WORKS
““COMMISSIONED”=CREATED AT ANOTHER’S COMMISSIONED”=CREATED AT ANOTHER’S “INSTANCE AND EXPENSE”“INSTANCE AND EXPENSE”
ONLY IF WITHIN 9 SPECIFIED CATEGORIES OF ONLY IF WITHIN 9 SPECIFIED CATEGORIES OF WORKSWORKS E.g., CONTRIBUTION TO A COLLECTIVE WORK OR E.g., CONTRIBUTION TO A COLLECTIVE WORK OR
AUDIOVISUAL WORKAUDIOVISUAL WORK Nb: SOUND RECORDINGS NOT A CATEGORYNb: SOUND RECORDINGS NOT A CATEGORY
BOTH PARTIES MUST EXPRESSLY AGREE IN A BOTH PARTIES MUST EXPRESSLY AGREE IN A WRITTEN INSTRUMENT SIGNED BY THEM THAT IT WRITTEN INSTRUMENT SIGNED BY THEM THAT IT WILL BE CONSIDERED A WORK MADE FOR HIREWILL BE CONSIDERED A WORK MADE FOR HIRE
Nb: TIMING OF THE WRITTEN INSTRUMENT?Nb: TIMING OF THE WRITTEN INSTRUMENT?
JOINT WORKSJOINT WORKS
IMPORTANCE: JOINT AUTHORS ARE TENANTS IN COMMONIMPORTANCE: JOINT AUTHORS ARE TENANTS IN COMMON SHARE AN UNDIVIDED INTEREST IN THE WHOLE WORK, SHARE AN UNDIVIDED INTEREST IN THE WHOLE WORK,
NOT JUST THEIR CONTRIBUTIONSNOT JUST THEIR CONTRIBUTIONS EITHER CAN USE OR LICENSE, SUBJECT TO DUTY TO EITHER CAN USE OR LICENSE, SUBJECT TO DUTY TO
ACCOUNT TO CO-OWNERSACCOUNT TO CO-OWNERS WORK PREPARED BY 2 OR MORE AUTHORS WITH THE WORK PREPARED BY 2 OR MORE AUTHORS WITH THE
INTENT TO MERGE THEIR CONTRIBUTIONS INTO A UNITARY INTENT TO MERGE THEIR CONTRIBUTIONS INTO A UNITARY WHOLEWHOLE
ADDITIONAL COURT-MADE REQUIREMENTS:ADDITIONAL COURT-MADE REQUIREMENTS: INTENTION TO SHARE AUTHORSHIPINTENTION TO SHARE AUTHORSHIP SEPARATELY COPYRIGHTABLE CONTRIBUTIONSEPARATELY COPYRIGHTABLE CONTRIBUTION
But see, But see, Gaiman v. McFarlaneGaiman v. McFarlane (7 (7thth Cir., 2004) Cir., 2004)(contributor of non-copyrightable “expressive (contributor of non-copyrightable “expressive content” was a co-author of comic book characters content” was a co-author of comic book characters created in collaboration)created in collaboration)
MUSIC RIGHTSMUSIC RIGHTS
IMPORTANT TO DISTINGUISH:IMPORTANT TO DISTINGUISH: ““MUSICAL WORK”: THE SONG—MELODY, MUSICAL WORK”: THE SONG—MELODY,
LYRICS, ETC., FROM…LYRICS, ETC., FROM… AUTHOR(S): THE SONGWRITER(S).AUTHOR(S): THE SONGWRITER(S). JOINT WORK NOT UNUSUALJOINT WORK NOT UNUSUAL OFTEN ASSIGNED TO A MUSIC PUBLISHEROFTEN ASSIGNED TO A MUSIC PUBLISHER
““SOUND RECORDING”: A “FIXED” (RECORDED) SOUND RECORDING”: A “FIXED” (RECORDED) PERFORMANCE OF THE SONGPERFORMANCE OF THE SONG
DIFFERENT SOUND RECORDINGS COULD BE MADE OF DIFFERENT SOUND RECORDINGS COULD BE MADE OF THE SAME SONGTHE SAME SONG
““AUTHORS”: USUALLY THE PERFORMERS, CREATIVE AUTHORS”: USUALLY THE PERFORMERS, CREATIVE PRODUCER. PRODUCER.
OFTEN OWNED BY A RECORD COMPANY (WFH?)OFTEN OWNED BY A RECORD COMPANY (WFH?)
MUSICAL WORK/SONGMUSICAL WORK/SONG
INCLUDES WORDS, IF ANYINCLUDES WORDS, IF ANY FULL PANOPLY OF RIGHTS:FULL PANOPLY OF RIGHTS:
REPRODUCE, PUBLIC DISTRIBUTION, PUBLIC PERFORMANCE, PUBLIC REPRODUCE, PUBLIC DISTRIBUTION, PUBLIC PERFORMANCE, PUBLIC DISPLAY, ADAPTATION/”DERIVATIVE WORKS”DISPLAY, ADAPTATION/”DERIVATIVE WORKS”
COMPULSORY MECHANICAL LICENSE, INCLUDES DIGITAL COMPULSORY MECHANICAL LICENSE, INCLUDES DIGITAL DOWNLOADSDOWNLOADS
NONDRAMATIC PERFORMANCES GENERALLY NONDRAMATIC PERFORMANCES GENERALLY LICENSED/ADMINISTERED BY A “PERFORMING RIGHTS SOCIETY”LICENSED/ADMINISTERED BY A “PERFORMING RIGHTS SOCIETY”
IN U.S.: ASCAP, BMI OR SESACIN U.S.: ASCAP, BMI OR SESAC NOT LIMITED TO DIGITAL PERFORMANCES (eg CLUBS, NON-NOT LIMITED TO DIGITAL PERFORMANCES (eg CLUBS, NON-
DIGITAL RADIO/TV, ETC.)DIGITAL RADIO/TV, ETC.) ““PERFORM” = RECITE, RENDER, PLAY, ETC.PERFORM” = RECITE, RENDER, PLAY, ETC.
Nb: RECENT DECISION THAT A PURE DOWNLOAD IS Nb: RECENT DECISION THAT A PURE DOWNLOAD IS NOTNOT A A “PERFORMANCE”“PERFORMANCE”
““PUBLIC” = (1) PLACE OPEN TO PUBLIC, OR (2) ANY PLACE WITH A PUBLIC” = (1) PLACE OPEN TO PUBLIC, OR (2) ANY PLACE WITH A SUBSTANTIAL NUMBER OF PERSONS (IN ADDITION TO FAMILY, SOCIAL SUBSTANTIAL NUMBER OF PERSONS (IN ADDITION TO FAMILY, SOCIAL ACQUAITANCES) GATHERED, OR (3) TRANSMISSION/COMMUNICATION ACQUAITANCES) GATHERED, OR (3) TRANSMISSION/COMMUNICATION TO (1) OR (2), EVEN IF SEPARATE PLACES AND/OR DIFFERENT TIMES.TO (1) OR (2), EVEN IF SEPARATE PLACES AND/OR DIFFERENT TIMES.
SOUND RECORDINGSSOUND RECORDINGS
LIMITED RIGHTSLIMITED RIGHTS DERIVATIVE WORKS: ONLY IF LITERALLY TAKES DERIVATIVE WORKS: ONLY IF LITERALLY TAKES
ACTUAL SOUNDS ACTUAL SOUNDS NOT AN IMITATION OF PRIOR RECORDINGNOT AN IMITATION OF PRIOR RECORDING
—”SOUNDALIKES” ARE PERMITTED UNDER C/R—”SOUNDALIKES” ARE PERMITTED UNDER C/R BUT nb: RECENT DECISION RE DIGITAL SAMPLES—NO BUT nb: RECENT DECISION RE DIGITAL SAMPLES—NO
“DE MINIMIS” USE DEFENSE, EVEN A TINY, “DE MINIMIS” USE DEFENSE, EVEN A TINY, UNRECOGNIZABLE LITERAL USE MAY INFRINGE (but UNRECOGNIZABLE LITERAL USE MAY INFRINGE (but consider fair use)consider fair use)
NO GENERAL PUBLIC PERFORMANCE RIGHTNO GENERAL PUBLIC PERFORMANCE RIGHT CURRENT LOBBYING TO OBTAINCURRENT LOBBYING TO OBTAIN
SOUND RECORDINGS—DIGITAL AUDIO SOUND RECORDINGS—DIGITAL AUDIO TRANSMISSIONSTRANSMISSIONS
BACKGROUNDBACKGROUND 11STST DIGITAL AUDIO RECORDING TECHNOLOGY DIGITAL AUDIO RECORDING TECHNOLOGY
(DAT) LED TO AUDIO HOME RECORDING ACT(DAT) LED TO AUDIO HOME RECORDING ACT ROYALTY ON HARDWARE & MEDIA, SHARED ROYALTY ON HARDWARE & MEDIA, SHARED
AMONG STAKEHOLDERS PER STATUTEAMONG STAKEHOLDERS PER STATUTE MANDATED SERIAL COPY MANAGEMENTMANDATED SERIAL COPY MANAGEMENT NO INFRINGEMENT TO MAKE NO INFRINGEMENT TO MAKE
NONCOMMERCIAL PERSONAL COPIES NONCOMMERCIAL PERSONAL COPIES (INCLUDING ANALOG)(INCLUDING ANALOG)
““CELESTIAL JUKEBOX” PROBLEM: DIGITAL CELESTIAL JUKEBOX” PROBLEM: DIGITAL INTERNET TRANSMISSIONS COULD INTERNET TRANSMISSIONS COULD SUBSTITUTE FOR RECORD PURCHASESUBSTITUTE FOR RECORD PURCHASE
SOUND RECORDINGS—DIGITAL AUDIO SOUND RECORDINGS—DIGITAL AUDIO TRANSMISSIONSTRANSMISSIONS
§114(d): COMPLEX RULES§114(d): COMPLEX RULES IF ELIGIBLE, NON-INTERACTIVE TRANSMISSION, POSSIBLE IF ELIGIBLE, NON-INTERACTIVE TRANSMISSION, POSSIBLE
COMPULSORY(“STATUTORY”) LICENSECOMPULSORY(“STATUTORY”) LICENSE ELIGIBILITY: NOT TOO MANY SONGS FROM ONE ALBUM OR ARTIST, ELIGIBILITY: NOT TOO MANY SONGS FROM ONE ALBUM OR ARTIST,
ADVANCE PROGRAM SCHEDULE NOT PUBLISHED. i.e., NOT EASILY ADVANCE PROGRAM SCHEDULE NOT PUBLISHED. i.e., NOT EASILY USED AS A SUBSTITUTE FOR RECORD PURCHASEUSED AS A SUBSTITUTE FOR RECORD PURCHASE
PERMITS INTERESTED GROUPS TO NEGOTIATE RATES, OTHERWISE, PERMITS INTERESTED GROUPS TO NEGOTIATE RATES, OTHERWISE, COPYRIGHT ROYALTY JUDGESCOPYRIGHT ROYALTY JUDGES
CONTROVERSY NOW RE WEBCASTER ROYALTIES (PER CONTROVERSY NOW RE WEBCASTER ROYALTIES (PER PERFORMANCE VS. SHARE OF REVENUE)PERFORMANCE VS. SHARE OF REVENUE)
IF SET STATUTORILY, ROYALTIES ALLOCATED PER STATUTE TO IF SET STATUTORILY, ROYALTIES ALLOCATED PER STATUTE TO STAKEHOLDERSSTAKEHOLDERS
IF DOESN’T QUALIFY (e.g. INTERACTIVE), TRANSMITTER NEEDS TO IF DOESN’T QUALIFY (e.g. INTERACTIVE), TRANSMITTER NEEDS TO NEGOTIATE A CONSENSUAL LICENSENEGOTIATE A CONSENSUAL LICENSE
SLIGHTLY DIFFERENT RULES FOR PREEXISTING SUBSCRIPTION SERVICES, SLIGHTLY DIFFERENT RULES FOR PREEXISTING SUBSCRIPTION SERVICES, OTHER SUBSCRIPTION SERVICES, NON-SUBSCRIPTION SERVICESOTHER SUBSCRIPTION SERVICES, NON-SUBSCRIPTION SERVICES
THERE ARE SOME “EXEMPTIONS”, e.g. NONSUBSCRIPTION BROADCAST THERE ARE SOME “EXEMPTIONS”, e.g. NONSUBSCRIPTION BROADCAST TRANSMISSIONS (i.e. DIGITAL BROADCAST RADIO), RETRANSMISSIONS TRANSMISSIONS (i.e. DIGITAL BROADCAST RADIO), RETRANSMISSIONS (SUBJECT TO COMPLEX LIMITATIONS)(SUBJECT TO COMPLEX LIMITATIONS)
P2P FILE SHARINGP2P FILE SHARING
INITIALLY, FILES ACCESSED THROUGH A INITIALLY, FILES ACCESSED THROUGH A “SERVER”, NOT DIRECTLY FROM OTHER “SERVER”, NOT DIRECTLY FROM OTHER CLIENT COMPUTERSCLIENT COMPUTERS
P2P PERMITS DIRECT “SHARING” AMONG P2P PERMITS DIRECT “SHARING” AMONG CLIENTSCLIENTS
COMBINED WITH DIGITAL COMPRESSION AND COMBINED WITH DIGITAL COMPRESSION AND INCREASED BANDWIDTH, PERMITS WIDE INCREASED BANDWIDTH, PERMITS WIDE DISTRIBUTION OF CONTENT WITHOUT DISTRIBUTION OF CONTENT WITHOUT CONTROL/PERMISSION OF COPYRIGHT CONTROL/PERMISSION OF COPYRIGHT OWNEROWNER
INITIALLY, MUSIC (BECAUSE VIDEO FILES ARE INITIALLY, MUSIC (BECAUSE VIDEO FILES ARE MUCH BIGGER). NOW, VIDEO AS WELL.MUCH BIGGER). NOW, VIDEO AS WELL.
SECONDARY COPYRIGHT SECONDARY COPYRIGHT LIABILITY IN P2PLIABILITY IN P2P
UPLOADING/DOWNLOADING FILES IS A UPLOADING/DOWNLOADING FILES IS A “DIRECT” INFRINGEMENT—“DIRECT” INFRINGEMENT—REPRODUCTION/DISTRIBUTIONREPRODUCTION/DISTRIBUTION BILLIONS OF SONGS PER MONTHBILLIONS OF SONGS PER MONTH
CONTENT OWNERS WOULD PREFER TO CONTENT OWNERS WOULD PREFER TO SHUT DOWN ENABLERS/MIDDLEMEN SHUT DOWN ENABLERS/MIDDLEMEN RATHER THAN SUING INDIVIDUAL USERSRATHER THAN SUING INDIVIDUAL USERS
MIDDLEMEN MAY NOT BE DIRECT MIDDLEMEN MAY NOT BE DIRECT INFRINGERS, SO APPLY SECONDARY INFRINGERS, SO APPLY SECONDARY LIABILITY CONCEPTSLIABILITY CONCEPTS
SECONDARY LIABILITY IN SECONDARY LIABILITY IN COPYRIGHTCOPYRIGHT
TWO TYPESTWO TYPES VICARIOUS LIABILITYVICARIOUS LIABILITY CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT CF. PHONOVISA FLEAMARKET DECISIONCF. PHONOVISA FLEAMARKET DECISION
VICARIOUS LIABILITYVICARIOUS LIABILITY
VICARIOUS LIABILITYVICARIOUS LIABILITY RIGHT/ABILITY TO SUPERVISE/CONTROLRIGHT/ABILITY TO SUPERVISE/CONTROL FINANCIAL INTEREST IN THE FINANCIAL INTEREST IN THE
INFRINGEMENTINFRINGEMENT Nb: KNOWLEDGE OF INFRINGEMENT Nb: KNOWLEDGE OF INFRINGEMENT
NOT REQUIREDNOT REQUIRED
CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT
CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT WITH KNOWLEDGE OF INFRINGEMENTWITH KNOWLEDGE OF INFRINGEMENT INDUCES OR MATERIALLY CONTRIBUTES TO INDUCES OR MATERIALLY CONTRIBUTES TO
THE INFRINGEMENTTHE INFRINGEMENT E.G. PROVIDES “SITE AND FACILITIES”E.G. PROVIDES “SITE AND FACILITIES”
CONSIDER TECHNOLOGY WITH CAPABILITY OF CONSIDER TECHNOLOGY WITH CAPABILITY OF EITHER INFRINGING OR NON-INFRINGING USE—EITHER INFRINGING OR NON-INFRINGING USE—SONY BETAMAXSONY BETAMAX PROBLEM PROBLEM
IF NO ACTUAL KNOWLEDGE AND IF NO ACTUAL KNOWLEDGE AND TECHNOLOGY CAPABLE OF “SUBSTANTIAL TECHNOLOGY CAPABLE OF “SUBSTANTIAL NON-INFRINGING USE”, NO CONSTRUCTIVE NON-INFRINGING USE”, NO CONSTRUCTIVE KNOWLEDGE, NO CONTRIBUTORY LIABILITYKNOWLEDGE, NO CONTRIBUTORY LIABILITY
NAPSTERNAPSTER
USED CENTRAL COMPUTER TO CREATE AN INDEX USED CENTRAL COMPUTER TO CREATE AN INDEX OF ALL CURRENTLY ONLINE USERS WITH A OF ALL CURRENTLY ONLINE USERS WITH A PARTICULAR TUNEPARTICULAR TUNE
LINKED REQUESTING CLIENT WITH OTHERS LINKED REQUESTING CLIENT WITH OTHERS AVAILABLE FOR DOWNLOAD, WHICH THEN AVAILABLE FOR DOWNLOAD, WHICH THEN OCCURRED DIRECTLY BETWEEN PEERSOCCURRED DIRECTLY BETWEEN PEERS
VICARIOUS: BECAUSE CENTRALIZED, HAD VICARIOUS: BECAUSE CENTRALIZED, HAD ABILITY TO CONTROL. ALTHOUGH NOT AS DIRECT ABILITY TO CONTROL. ALTHOUGH NOT AS DIRECT AS OLD CASES, EXPECTED A FINANCIAL BENEFIT.AS OLD CASES, EXPECTED A FINANCIAL BENEFIT.
CONTRIBUTORY: BECAUSE CENTRALIZED, HAD CONTRIBUTORY: BECAUSE CENTRALIZED, HAD KNOWLEDGE. PROVIDED “SITE AND FACILITIES”.KNOWLEDGE. PROVIDED “SITE AND FACILITIES”.
POST-NAPSTER P2PPOST-NAPSTER P2P
NEWER TECHNOLOGIES DIDN’T USE A CENTRALIZED INDEX, NEWER TECHNOLOGIES DIDN’T USE A CENTRALIZED INDEX, PERMITTED MORE DECENTRALIZED ACCESSPERMITTED MORE DECENTRALIZED ACCESS
SOME ALSO CONCEALED INFORMATION ABOUT SHARED FILESSOME ALSO CONCEALED INFORMATION ABOUT SHARED FILES SO NO RIGHT/ABILITY TO SUPERVISE, OR ACTUAL KNOWLEDGE. SO NO RIGHT/ABILITY TO SUPERVISE, OR ACTUAL KNOWLEDGE.
LOWER CTS.-NOT LIABLE, APPEALED TO USSC.LOWER CTS.-NOT LIABLE, APPEALED TO USSC. MUCH DEBATE AS TO INTERPRETATION OF MUCH DEBATE AS TO INTERPRETATION OF SONYSONY MGM v. GROKSTERMGM v. GROKSTER: USSC MAJORITY DODGED INTERPRETING : USSC MAJORITY DODGED INTERPRETING
SONYSONY, FOUND POTENTIAL CONTRIBUTORY LIABILITY BY VIRTUE , FOUND POTENTIAL CONTRIBUTORY LIABILITY BY VIRTUE OF EVIDENCE OF SPECIFIC ACTS TO ENCOURAGE/INDUCE OF EVIDENCE OF SPECIFIC ACTS TO ENCOURAGE/INDUCE INFRINGEMENTINFRINGEMENT EVIDENCE IN CONFLICT, BUT MAYBE 10% OF USE WAS EVIDENCE IN CONFLICT, BUT MAYBE 10% OF USE WAS
NONINFRINGINGNONINFRINGING SOME JUSTICES WOULD FIND THAT SUFFICIENT NON-SOME JUSTICES WOULD FIND THAT SUFFICIENT NON-
INFRINGING USE TO SATISFY INFRINGING USE TO SATISFY SONYSONY. OTHERS DISAGREED.. OTHERS DISAGREED.
RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES
RIGHT OF PUBLICITY: STATE LAW, DERIVED RIGHT OF PUBLICITY: STATE LAW, DERIVED FROM TYPE OF INVASION OF PRIVACY + FROM TYPE OF INVASION OF PRIVACY + UNFAIR COMPETITIONUNFAIR COMPETITION STATE LAWS VARY, NOT ALL RECOGNIZESTATE LAWS VARY, NOT ALL RECOGNIZE
E.G. NOT ALWAYS “DESCENDIBLE” AFTER DEATHE.G. NOT ALWAYS “DESCENDIBLE” AFTER DEATH
UNAUTHORIZED USE OF NAME, LIKENESS, UNAUTHORIZED USE OF NAME, LIKENESS, OTHER INDICIA OF IDENTITY/PERSONA FOR OTHER INDICIA OF IDENTITY/PERSONA FOR ADVERTISING OR PURPOSES OF TRADE/ON ADVERTISING OR PURPOSES OF TRADE/ON OR IN PRODUCTS/MERCHANDISEOR IN PRODUCTS/MERCHANDISE
RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES
RIGHT OF PUBLICITY CAN CONFLICT WITH RIGHT OF PUBLICITY CAN CONFLICT WITH FREEDOM OF SPEECH, ESPECIALLY WHEN FREEDOM OF SPEECH, ESPECIALLY WHEN ASSERTED AGAINST USE OF PERSONA IN ASSERTED AGAINST USE OF PERSONA IN INFORMATIVE OR EXPRESSIVE WORKS.INFORMATIVE OR EXPRESSIVE WORKS.
HOW TO “BALANCE” IS UNSETTLED—DIFFERENT HOW TO “BALANCE” IS UNSETTLED—DIFFERENT STATES HAVE DIFFERENT APPROACHESSTATES HAVE DIFFERENT APPROACHES E.G. CALIFORNIA: “TRANSFORMATIVENESS”E.G. CALIFORNIA: “TRANSFORMATIVENESS” MISSOURI: “PREDOMINANT PURPOSE”MISSOURI: “PREDOMINANT PURPOSE” SOME OTHERS: RELEVANCE OR RELATIONSHIP SOME OTHERS: RELEVANCE OR RELATIONSHIP
TO THE MESSAGETO THE MESSAGE PARODY/SATIRE HAS ALSO DEFEATED RIGHT OF PARODY/SATIRE HAS ALSO DEFEATED RIGHT OF
PUBLICITYPUBLICITY
RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES
GAMES CAN CONVEY INFORMATION, BUT GAMES CAN CONVEY INFORMATION, BUT SOME CASES IN THE ’60s AGAINST SPORTS SOME CASES IN THE ’60s AGAINST SPORTS SIMULATION BOARDGAMES FOUND SIMULATION BOARDGAMES FOUND VIOLATION OF THE RIGHTVIOLATION OF THE RIGHT
TWO RECENT DECISIONS FOUND TWO RECENT DECISIONS FOUND OTHERWISEOTHERWISE
GENERALLY, MOST COURTS HAVE FOUND GENERALLY, MOST COURTS HAVE FOUND VIDEOGAMES TO BE CONSTITUTIONALLY VIDEOGAMES TO BE CONSTITUTIONALLY PROTECTED “SPEECH”PROTECTED “SPEECH”
RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES
““FANTASY BASEBALL”/FANTASY BASEBALL”/C.B.C. v. MAJOR LEAGUE BASEBALL C.B.C. v. MAJOR LEAGUE BASEBALL ADVANCED MEDIAADVANCED MEDIA DIST. CT. (E.D. Mo. 2006) GAVE SUMMARY JUDGEMENT DIST. CT. (E.D. Mo. 2006) GAVE SUMMARY JUDGEMENT
TO GAME CO.TO GAME CO. NOT USING PLAYERS’ NAMES/PLAYING RECORDS NOT USING PLAYERS’ NAMES/PLAYING RECORDS
AS A “SYMBOL OF THEIR IDENTITIES TO OBTAIN A AS A “SYMBOL OF THEIR IDENTITIES TO OBTAIN A COMMERCIAL ADVANTAGE”COMMERCIAL ADVANTAGE”
DISTINGUISH OLD GAME CASES, BECAUSE THEY DISTINGUISH OLD GAME CASES, BECAUSE THEY USED LIKENESSES & BASED ON “PRIVACY”USED LIKENESSES & BASED ON “PRIVACY”
ALSO: 1ALSO: 1STST AMENDMENT OUTWEIGHS RIGHT OF AMENDMENT OUTWEIGHS RIGHT OF PUBLICITY IN THIS CONTEXTPUBLICITY IN THIS CONTEXT
““FANTASY BASEBALL”/FANTASY BASEBALL”/C.B.C. v. C.B.C. v. MAJOR LEAGUE BASEBALL MAJOR LEAGUE BASEBALL
ADVANCED MEDIAADVANCED MEDIA 8th CIR. JUST AFFIRMED (OCT. 16, 2007)8th CIR. JUST AFFIRMED (OCT. 16, 2007) DISAGREED AS TO WHETHER RIGHT WAS VIOLATEDDISAGREED AS TO WHETHER RIGHT WAS VIOLATED
CBC IS USING PLAYERS’ IDENTITIES FOR PROFIT/COMMERCIAL CBC IS USING PLAYERS’ IDENTITIES FOR PROFIT/COMMERCIAL ADVANTAGEADVANTAGE
NO NEED FOR FALSE ENDORSEMENTNO NEED FOR FALSE ENDORSEMENT BUT: AFFIRMED AS TO 1BUT: AFFIRMED AS TO 1STST AMENDMENT AMENDMENT
FACTUAL DATA ABOUT ATHLETIC PERFORMANCE COMMANDS FACTUAL DATA ABOUT ATHLETIC PERFORMANCE COMMANDS SUBSTANTIAL PUBLIC INTEREST AND IS ENTITLED TO SUBSTANTIAL PUBLIC INTEREST AND IS ENTITLED TO CONSTITUTIONAL PROTECTIONCONSTITUTIONAL PROTECTION
INTERESTS PROTECTED BY RIGHT OF PUBLICITY NOT HARMED INTERESTS PROTECTED BY RIGHT OF PUBLICITY NOT HARMED PLAYERS ARE REWARDED FOR THEIR PERFORMANCES AND PLAYERS ARE REWARDED FOR THEIR PERFORMANCES AND
ENDORSEMENTSENDORSEMENTS ALL PLAYERS ARE USED, SO NO FALSE ENDORSEMENT BY A ALL PLAYERS ARE USED, SO NO FALSE ENDORSEMENT BY A
PLAYER WITH “STAR POWER”PLAYER WITH “STAR POWER” DISSENT WOULD FIND VIOLATION OF CONTRACTUAL AGREEMENT NOT DISSENT WOULD FIND VIOLATION OF CONTRACTUAL AGREEMENT NOT
TO CHALLENGE OR USE MLBPA’S RIGHTSTO CHALLENGE OR USE MLBPA’S RIGHTS
RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES
KIRBY v. SEGAKIRBY v. SEGA (CAL. APP. 2006) (CAL. APP. 2006) POP SINGER FROM DEEE-LITE CLAIMED A CHARACTER IN “SPACE POP SINGER FROM DEEE-LITE CLAIMED A CHARACTER IN “SPACE
CHANNEL 5” USED HER IDENTITYCHANNEL 5” USED HER IDENTITY LOWER CT. FOUND ISSUE OF FACT AS TO USE OF KIRBY’S LOWER CT. FOUND ISSUE OF FACT AS TO USE OF KIRBY’S
IDENTITY. THIS CT. AGREES.IDENTITY. THIS CT. AGREES. BUT VIDEOGAMES ARE “EXPRESSIVE WORKS ENTITLED TO AS BUT VIDEOGAMES ARE “EXPRESSIVE WORKS ENTITLED TO AS
MUCH FIRST AMENDMENT PROTECTION AS THE MOST MUCH FIRST AMENDMENT PROTECTION AS THE MOST PROFOUND LITERATURE.”PROFOUND LITERATURE.” APPLIES “TRANSFORMATIVENESS” TEST—SATISFIEDAPPLIES “TRANSFORMATIVENESS” TEST—SATISFIED
ADDED SOMETHING NEW, “ALTERING THE FIRST WITH ADDED SOMETHING NEW, “ALTERING THE FIRST WITH NEW EXPRESSION, MEANING OR MESSAGE”NEW EXPRESSION, MEANING OR MESSAGE”
REJECTS “PREDOMINANT PURPOSE” TESTREJECTS “PREDOMINANT PURPOSE” TEST NOT NECESSARY TO BE A PARODY OR CONVEY A MEANING NOT NECESSARY TO BE A PARODY OR CONVEY A MEANING
OR MESSAGE AS LONG AS IT ADDS NEW EXPRESSIONOR MESSAGE AS LONG AS IT ADDS NEW EXPRESSION THIS ALSO DEFEATS HER LANHAM ACT, UNFAIR COMPETITION THIS ALSO DEFEATS HER LANHAM ACT, UNFAIR COMPETITION
CLAIMSCLAIMS