Archives for 2013

Two New Copyright Royalty Judges Appointed

Judge using his gavelThe Librarian of Congress has announced his appointment of two new Copyright Royalty Judges to fill the vacancies created by the mid-term resignations of Judges Wisniewski and Roberts.  The Copyright Royalty Judges hear proceedings before the Copyright Royalty Board, and are responsible for setting rates and terms and also distributions of royalties for various statutory licenses in the Copyright Act.

Judge David R. Strickler replaces Judge Wisniewski as the Judge required to have experience in economics.  Judge Strickler received his M.A. in economics from Columbia University, was a law and economics fellow at the University of Miami School of Law, and is an adjunct professor of economics at Brookdale College in New Jersey.  He is also a commercial litigator, with a focus on valuation disputes related to securities and real estate.

Judge Jesse Feder replaces Judge Roberts as the Judge required to have copyright law experience.  Judge Feder has served since 2004 as director of International Trade and Intellectual Property for the Business Software Alliance.  Prior to that, Judge Feder held several positions at the United States Copyright Office.

Paul Fakler Quoted in National Law Journal on Proposed Overhaul of Copyright Act

Copyright SymbolThe National Law Journal ran an article today on recent proposals by Register Pallante and House Judiciary Chairman Goodlatte to begin the process for a general revision (i.e., ground-up re-write) of the Copyright Act.  The article contains a few of my thoughts on the topic.  I am certain to be writing in more detail as we move forward.  If the process is managed properly, a general revision could be a great benefit to all stakeholders (including the public).

 

Heisman Hostilities: The Tension Between Copyright and Right of Publicity in Celebrity Photographs

Desmond HowardSometimes, when you mess with the bull you get the horns.  Such seems to be the case in a copyright infringement action recently filed by photographer Brian Masck.  The case involves the photo displayed to the left, depicting football legend Desmond Howard.  Mr. Masck took the photograph at a game in 1991, the year that Mr. Howard would go on to win the Heisman Trophy.  The photograph depicts Mr. Howard striking a pose similar to the figure on the Heisman Trophy after making a big play in the game that day.

Over twenty years later, Mr. Masck has filed a lawsuit against several different defendants, claiming that they have infringed his copyright in the photograph by using it without his permission.  Fair enough, and obviously liability would depend upon the specific facts relating to each defendant’s use.   This case gets interesting, however, because Mr. Masck chose to include Mr. Howard, the subject of the photograph, as a defendant. [Read more…]

Second Circuit Rules Most Appropriation Art is Fair Use: Cariou v. Prince

A-773,Graduation, Richard Prince In Cariou v. Prince, the Second Circuit has arguably expanded the scope of fair use in the context of appropriation art.  In its decision, the majority not only reversed the district court’s summary judgment in favor of the plaintiff photographer, but entered its own summary judgment in favor of the defendant with respect to 25 of the 30 works at issue, and remanded for further proceedings with respect to the other five.  Crucially, the majority held that in analyzing the first fair use factor (the purpose and character of the use), the defendant’s work need not comment upon or criticize the plaintiff’s work in order to be deemed transformative.  [Read more…]

Breaking Copyright Royalty Board News: Judge Roberts Resigns Suddenly

Judge using his gavelJudge Roberts tendered his resignation from the Copyright Royalty Board today.  He is presently serving his second term, which would not have expired until next year.  The resignation is effective May 4, 2013.

Here is Judge Roberts’s letter of resignation: