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Weekly Issues in the News

By Geisa Balla

Copyright Law and Gray Market Goods

The U.S. Supreme Court will examine two contradictory provisions in the Copyright Act in Kirtsaeng v. John Wiley & Sons. The competing provisions are the first sale doctrine, which permits the owner of a lawfully-produced work to resell the work without the authority of the copyright owner, versus the one controlling the importation of copyrighted material into the United States. The case at hand involves a Thai student, Kirtstaeng, who was selling used foreign-manufactured books on eBay at a profit. The student's position is that the first sale doctrine allows him to resell these books. John Wiley & Sons, whose Asian subsidiary produced some of the books in question, disagreed, and filed a copyright infringement lawsuit in 2008 in the Southern District of New York. The jury eventually found Kirtsaeng liable, and Kirtsaeng appealed. The Second Circuit upheld the verdict, ruling that the first-sale doctrine applies only to goods made in the United States. The Appellate Court also noted a "particularly difficult question of statutory construction" because of the competing Copyright Acts provision. The Supreme Court is expected to hear arguments in its October term for 2012.


Louis Vuitton

The U.S. International Trade Commission (ITC) issued a decision this week, putting border agents on notice to block counterfeit Louis Vuitton goods from entering the United States. Louis Vuitton filed an ITC complaint in December 2010, alleging that various Chinese counterfeiters and some U.S. retailers were infringing its Toile trademark. Some of the defendants settled the matter before trial, and the remaining defendants failed to participate in the proceedings. The decision by Administrative Law Judge Charles Bullock doesn't specify a remedy, but says that the ITC may issue cease-and-desist orders to keep the alleged counterfeiters from "engaging in unfair acts in the importation and sale" of infringing articles. Vuitton's global intellectual property director, Valerie Sonnier, told Women's Wear Daily that, "The chief administrative law judge recognizes the importance of protecting intellectual property and took the welcome step of ensuring that its orders include all merchandise that infringes on our Toile Monogram Marks, and not just products of the respondents in this case."


Superman and DC Comics

Attorney and businessman Marc Toberoff represented the heirs of Superman's creators, Jerome Segel and Joe Shuster, in a copyright dispute over the Man of Steel. After Toberoff won summary judgment for his clients in 2008, DC Comics filed a declaratory judgment action against him, his companies and his heirs. DC Comics contends that Toberoff induced Siegel and Shuster's families to break previous rights agreements, and in return, Toberoff would get 40% of whatever the families would earn from Superman rights. The court decided on April 17, 2012, that Toberoff cannot claim attorney-client privilege on the documents he turned over to prosecutors investigating a former associate who allegedly stole case documents from his office. DC Comics and Warner Brothers will now have access to the materials that support their arguments that the Siegel and Shuster families had entered into rights agreements before Toberoff interfered in their relationship with DC Comics. A Warner Brothers spokesperson stated, "We are extremely pleased that the 9th Circuit unanimously found in our favor. The ruling means that defendant Marc Toberoff must now turn over critical evidence in the pending litigation against him and others."



Magician and comedian Teller, of Penn & Teller, filed a lawsuit in the District of Nevada on April 11, 2012, against Dutch entertainment Gerard Dogge over Teller's copyright illusion known as "Shadows." The illusion involves a spotlight on a vase containing a rose, where the shadow of the rose is projected onto a white screen. Using a knife, Teller then severs the leaves and petals of the shadow, and the corresponding leaves and petals of the actual rose fall to the ground. The complaint alleges that Shadows is "the oldest most venerated piece of material in Penn & Teller's show." The illusion was registered with the Copyright Office in 1983. The defendant in this matter posted a YouTube video where he performs the illusion, and offers to sell the trick. Once Teller found out about the video, he directed YouTube to remove it and contacted Dogge, asking him to stop marketing the work, and even asked him to pay for it. Dogge countered, demanding a much higher sum from Teller, and threatened to disclose the secret to the illusion if Teller did not agree to Dogge's terms. The lawsuit seeks a permanent injunction against any copyright infringement, plus damages.


The Bachelor

Two African-American men filed a class action racial discrimination lawsuit against ABC television and the producer of the reality show "The Bachelor" and "The Bachelorette." The plaintiffs are Nashville residents Nathaniel Claybrooks, an All-American football player, and Christopher Johnson, an aspiring NFL player. They claim that in the 10 years and 23 seasons of the shows, a person of color has never been featured in a central role. Both plaintiffs applied during an open casting in August 2011. Claybrooks claims that his interview lasted less than half the time of white applicants. Johnson alleges that he "did not get the opportunity to even make it to the second level," stating, "I was stopped by a young gentleman about five feet into the door. He saw fit to ask me exactly what was I doing here." Plaintiffs' counsel stated that he estimated there have been dozens or hundreds of contestants turned away because of their race, reasoning "How do you explain zero [Bachelors and Bachelorettes of color] for 23 [seasons]?" The plaintiffs refused to discuss their financial goals, but their attorney insisted: "This case is impact litigation... it can be a vehicle for change."


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This page contains a single entry from the blog posted on April 20, 2012 8:09 AM.

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