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Week in Review

By Martha Nimmer

Not So Special

In this case, not being special is actually a good thing. Spaniards can breath a sigh of relief: their country has managed to escape the U.S. Trade Representative's "Special 301" report, released in April. The list highlights which nations have troubling intellectual property practices, from lax enforcement to non-existent IP rights. Spain, along with Bulgaria, is no longer on the "Watch List." Additionally, our neighbor to the north, Canada, has moved from the "Priority Watch List" to the less severe "Watch List." This change, the report explains, is due to Canada's recent passage of the Copyright Modernization Act, which is "designed to implement Canada's obligations under the WIPO Internet Treaties and to address the challenges of copyright piracy in the digital age." Additionally, Canada also introduced legislation in March 2013 aimed at stemming the flow of counterfeit products into the country. This Act would allow Canadian customs officials to seize pirated and counterfeit goods at the borders.

The news was not so positive for Ukraine, however: the nation now finds itself designated a "Priority Foreign Country" (again, not a good thing) in lights of its "severe deterioration of enforcement" in pirated software and online piracy. The U.S. Trade Representative also pointed out the "nontransparent administration of royalty collecting societies" in the troubled Eastern European nation. Other countries on the "Priority Watch List" are Algeria, Argentina, Chile, China (no surprises there), India, Indonesia, Pakistan, Russian, Thailand and Venezuela.


Read the report here: http://www.ustr.gov/webfm_send/2841

To Kill a Copyright Assignment

Famed literary work To Kill a Mockingbird is at the center of a real-life court room drama. Author Harper Lee, who published the classic novel in 1960, filed suit last week in New York federal court against her literary agent, Samuel Pinkus. The suit seeks an unspecified amount of damages.

Lee accuses her agent of improperly collecting royalties from her book since 2007. According to the complaint, Pinkus "'engaged in a scheme to dupe Harper Lee, then 80 years old with declining hearing and eyesight,' into assigning the book's copyright to his company." Lee, who is now 87 years old and suffered a stroke in June 2007, does not recall signing the document or discussing it with her agent, according to the complaint.

To Kill a Mockingbird, Lee's only published book, received the Pulitzer Prize for fiction and is widely read in schools across the nation. The film version of the book, starring Gregory Peck, won three Academy Awards.



Return to Cambodia

Citing concerns over the origins of two ancient Khmer statues, the Metropolitan Museum of Art announced last week that the it planned to return two life-size sandstone pieces to the Cambodian government. The works, known as the Kneeling Attendants, have stood at the doorway of the Met's Southeast Asian galleries since 1994. The "Attendants" date from the 10th-century and were donated to the Met in four pieces between 1987 and 1992. Now, Met officials say that the statues were, in fact, smuggled out of a "remote jungle area" during the 1970s, when Cambodia found itself embroiled in a violent civil war.

The decision to return the Kneeling Attendants to Cambodia came after two top executives from the Met traveled to Cambodia in March to investigate the origins of the pieces. Cambodian officials provided evidence that the statues had been stolen from the Hoh Ker temple complex outside the Cambodian capital Phnom Penh. Included in this evidence were photos of the statues' rough, broken-off bases that were left at the site. According to The New York Times, witnesses stated that the pieces were intact as recently as 1970. Cambodian officials also visited the Met in March to document other Khmer items in the museum's collection. Following the visit, a "government official said that Cambodia would like the museum to review the provenance of another two dozen objects."

This decision to return the statues is part of the growing trend of American museums to investigate and respond to the claims of other countries that pieces in American museums may not belong here. Many works of art that have become fixtures in museums lack detailed paperwork that show exactly how the pieces left their home countries. "In recent years," writes The New York Times, "at the urging of the Association of Art Museum Directors and scholars, many museums have applied more rigorous standards to their acquisitions." This awareness has turned out well for the Met: the museum "has developed a collaborative relationship with [Cambodia] and is now exhibiting 10 sculptural works" by a contemporary Cambodian artist.


Michael Jackson Wrongful Death Trial Begins

Last week, opening statements in the Michael Jackson wrongful death trial began in Los Angeles. During the trial, which "promises dramatic revelations and legal fireworks," jurors will consider whether entertainment company AEG Live should pay Jackson's mother and three children billions of dollars for the company's alleged liability in the star's death. Jurors will hear weeks of testimony from the pop star's family, as well as expert testimony from medical and financial professional regarding Jackson's health, addiction history and career. Given the celebrity of Jackson and his family, media outlets petitioned the presiding judge Yvette Palazuelos to permit them to televise the trial. Judge Palazuelos, likely fearing a media circus, denied the request.

The central issue in the wrongful death action is this: did AEG Live, which promoted Jackson's comeback concerts in 2009, hire or supervise Dr. Conrad Murray, the physician convicted of involuntary manslaughter in Michael Jackson's death? Jackson died on June 25, 2009, two weeks before his "This Is It" tour was scheduled to debut in London. The medical examiner ruled that the singer died from a "fatal combination of sedatives and propofol, a surgical anesthetic that Murray told investigators he used to put Jackson to sleep almost every night in the month before his death." Attorneys for the Jackson family will argue that AEG and its executive knew, or should have known, about Jackson's fragile health and his previous use of drugs, but nonetheless, pressured Jackson and his doctor to fulfill a rigorous schedule in preparation for the London concerts. AEG, in turn, will argue that the pop star bears ultimately responsible for his death, that he "doctor-shopped" for prescriptions, and that Jackson chose Dr. Murray to serve as his personal physician.

The Jackson family seeks damages from AEG Live equal to the amount of money that Jackson would have earned over the course of his remaining lifetime if he had not passed away in 2009. Given the popularity of the singer and the estimates of his income potential, that judgment could amount to several billion dollars. One of the Jackson experts stated that the singer could have earned $1.4 billion by taking his comeback concert series "This Is It" on a world tour. AEG's attorneys have called that amount "very speculative," however, in light of Jackson's failing health.


Tackling the Copyright Act

Can one copyright a football play? Video game company Electronic Arts (EA) certainly hopes not, but that decision will be left to the jury in a case that is likely to produce significant repercussions across the copyright law and video game industries. The lawsuit that poses this question comes from Robin Antonick, who developed a prototype for a football game on the Apple II operating system and was later hired by EA in 1984 to write the source code for a video game simply titled "Football." A year later, famed football coach and broadcast announcer John Madden contracted with EA to permit the company to use his name in their football video. Antonick alleges that he worked on this video game in exchange for a cut of the royalties, but was eventually shut out of the franchise. To date, the franchise had sold over 100 million copies and earned over $4 billion.

Unhappy that he has been cut out of a billion dollar-business, Antonick filed suit in federal court in California, alleging that the games produced today use elements that he created, and that he deserves to share in the profits. At first blush, this case would appear to be a simple foray into the world of copyright infringement and the "substantial similarity" analysis. Not so fast. Video games, as The Hollywood Reporter points out, present a "unique challenge." When examining the substantial similarity of expression used in a work, should one look at the source code that is used to create a video game, or should a judge (or jury, in this case) focus on what that code "expresses," i.e. what shows up on the television screen when you play the videogame? EA believes that the judge should focus on the code, adding that the more recent Madden video games were independently created by a game developer who never saw, let alone used, Antonick's source code. Antonick, however, argues that the trier of fact should look at what the code expresses, for instance, the size of the football field and the appearance of the stadium and the football plays.

In response to Antonick's theory that one could copyright a football play, EA has raised two arguments. Football plays, according to EA, are not subject to copyright protection because they do not fall under any of the eight subject matter categories laid out in the Copyright Act. Only one of those categories--specifically, pantomimes and choreographic works" could even remotely encompass football plays and formations, says EA. "[T]he Copyright Office has clarified that 'a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work." In other words, football plays cannot be choreographed because they are not like dance moves or dance routines. Sorry, NFL players. The second argument raised by EA is that Antonick's creations were not original, but rather, based on the Oakland Raiders' playbook provided to EA by John Madden. In other words, Antonick did not create the plays for which he seeks payment; he merely translated the Raiders' playbook into source code.

Last week, U.S. District Judge Charles Breyer narrowed the scope of Antonick's claims, limiting Antonick's contract claim for unpaid royalties to derivative works. The court, however, did permit "field width" and "plays and formations" substantial similarity claims to go forward, meaning that a jury may, in fact, be asked whether one can copyright football plays.


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