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Week in Review

By Martha Nimmer

It's a Bird! It's a Plane! It's...an Invalid Copyright Termination!

A decade long legal battle may have finally come to an end. Last week, the Ninth Circuit Court of Appeals affirmed a district court decision that held a copyright termination claim filed by the heirs of Superman co-creator Joseph Shuster to be invalid.

In 2003, defendant Mark Peary, acting as executor of the estate of Joseph Shuster, filed a copyright termination notice, seeking to reclaim the copyrights to Superman that Shuster had assigned to plaintiff DC Comics in 1938. DC Comics, in turn, sought a declaratory judgment that the notice of termination was invalid based on a 1992 agreement with Shuster's siblings, which gave them "pensions for life in exchange for a revocation of the 1938 assignment of copyrights to DC and a re-grant to DC of all of Shuster's copyrights in Superman." In other words, the plaintiffs argued that "because the 1976 and 1998 statutes permitting the filing of copyright termination notices permit only the termination of assignments 'executed before January 1, 1978,' 17 U.S.C. ยง 304(c), (d) . . . [the] 1992 Agreement forecloses the estate's 2003 notice of termination, in that it leaves no pre-1978 assignment to terminate (instead creating a new assignment effective 1992)." The district court judge agreed, granting DC Comics partial summary judgment on the company's claim for declaratory relief. Just last month, the Ninth Circuit affirmed, holding that the 1992 agreement between DC and Shuster's siblings formed "a new, 1992 assignment of works to DC -- an assignment unaffected by the 2003 notice of termination."

So, at least for now, it looks as if Superman's fate rests safely in the hands of DC Comics.

http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/11/21/12-57245.pdf

Morel Prevails

Late last month, a federal jury awarded photojournalist Daniel Morel a $1.2 million verdict stemming from the unauthorized use of his photos by Agence France-Presse (AFP) and Getty Images. Morel, a native of Haiti, took the photographs of Haitian earthquake survivors following the devastating 2010 earthquake that claimed over 250,000 lives in the small Caribbean nation; Morel later posted the photos to his Twitter account, and an editor at Agence France-Presse eventually discovered Morel's photos through another Twitter user's account. Agence France-Presse used these photos without Morel's permission, and provided them to Getty Images. Getty Images then "widely disseminated" the gripping photos to various clients, including several television networks and the Washington Post. Some of these clients, among them the Washington Post, CBS, ABC and CNN, settled earlier with the photographer for undisclosed amounts.

U.S. District Judge Alison Nathan, who presided over the trial, ruled in January that the two companies were liable for infringement; the jury trial was held only to determine the amount of damages due to Morel. The $1.2 million verdict was the maximum statutory penalty available under the Copyright Act. AFP had originally asked for the award to be set at $120,000. Morel was also awarded damages of $400,000 pursuant to the Digital Millennium Copyright Act.

The case is Agence France-Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.

http://www.reuters.com/article/2013/11/22/us-media-copyright-twitter-idUSBRE9AL16F20131122

A Hell of a Legal Strategy

Despite the group's outlaw image, the Hells Angels Motorcycle Club has become increasingly litigious. No, the motorcycle group is not suing the police department for wrongful arrest or other criminal law-related activities. Actually, the group has taken an interest in the civil side of the judicial system, frequently turning to the courts to protect the club's intellectual property. In less than a decade, the organization has sued big name companies such as Toys "R" Us, Alexander McQueen, Amazon, Saks, Zappos, Walt Disney and Marvel Comics, alleging infringement on clothing, jewelry, posters, and even yo yos. The "Angels" have also challenged Internet domain name registrations and "a Hollywood movie -- all for borrowing the motorcycle club's name and insignias," according to The New York Times. Notably, one of the group's earliest intellectual property suits was launched in 1992 against Marvel Comics, which had named a comic book and its lead character "Hell's Angel." Marvel later agreed to change the name of the comic and the protagonist to "Dark Angel," and agreed to donate $35,000 to a children's charity, according to The New York Times.

Although sitting at the plaintiff's table in a federal courtroom is perhaps not where the Hells Angels would like to be imagined, over the years the group has capitalized on its tough guy image, eventually "becoming a recognizable marque and promoting itself on items as varied as T-shirts, coffee mugs and women's yoga pants. Sonny Barger, 75, the longtime Hells Angels leader, at times has offered his own online bazaar of goods that bear his name: sunglasses, bottles of cabernet sauvignon and books he has written. Not surprisingly, as the brand's popularity has grown, so has the desire to copy it and provide cheap knockoffs. More surprisingly, however, is the group's willingness to turn to "the same legal system they deride as part of the machinery that has unfairly defined them as criminals." In fact, the group has become more deliberate in protecting its image from misuse, even in light of crackdowns by law enforcement officials who say the Hells Angels "represent a criminal gang on six continents, trafficking drugs and guns and engaging in money laundering, extortion and mortgage fraud." Notably, the Hells Angels often settle their suits on favorable terms, obtaining concessions "from the accused parties by getting them to stop using the trademarks, destroy and recall merchandise and, in a few instances, pay some damages." Whether to credit effective legal strategizing or the group's macho leather vests for those victories, however, is up to you.

http://www.nytimes.com/2013/11/29/us/despite-outlaw-image-hells-angels-sue-often.html?pagewanted=1&_r=1&smid=tw-nytimes&partner=rss&emc=rss

A Long Journey Back to Germany

After spending nearly seven decades in the United States, a 3,000-year old gold Assyrian tablet is heading back to a Berlin museum, a Nassau County Surrogate Court's judge announced this week. The tablet, said to be smaller than a credit card and weighing only a third of an ounce, is known as the Ishtar Temple Tablet. It was allegedly stolen during World War II from a German museum, and later owned by a Holocaust survivor in Europe, "who may have gotten it in a trade with Russian soldiers for some cigarettes." The Holocaust survivor, Riven Flamenbaum, took the tablet to New York with him when he immigrated to the United States after war. His family did not know of the relic's existence until 2003, however, when Flamenbaum died. Attorney Raymond Dowd, who represents the Vorderasiatisches Museum in Berlin, said Flamenbaum's son, Israel, "made inquiries after its discovery about the tablet's true ownership." That investigation eventually developed, however, into the court battle that decided the tablet's fate last week.

Counsel for the Flamenbaums argued that the tablet was a spoil of war, saying that the Soviet government, upon invading Germany, gained title to the museum's property as a "spoil of war," and then later transferred that title to Flamenbaum. This argument was rejected, however, by the New York State Court of Appeals. The court stated that there was "no proof" that the Soviet Union ever possessed the tablet, adding that that it was U.S. policy during World War II to forbid the pillaging of cultural artifacts.

The tablet's ancient history can be traced to prsent day Iraq. German archaeologists excavated the gold tablet around a century ago from the Ishtar Temple in what is now northern Iraq. The tablet went on display in 1934, but disappeared around 1945. According to court documents, the Ishtar Temple Tablet dates to 1243 to 1207 B.C. The gold tablet is said to have been placed in the foundation of the temple of the fertility goddess -- the 21 lines of script on the tablet call on those who find the temple "to honor the king's name."

http://www.dailyfreeman.com/general-news/20131204/3000-year-old-gold-tablet-taken-in-war-going-back-to-german-museum

Grand Theft Image

Lindsay Lohan is sick of being the defendant, so it looks as if she will try her hand at playing the plaintiff. According to media reports, the troubled star plans to sue Rockstar Games, the maker of the ultra-popular video game series Grand Theft Auto, over the alleged unauthorized use of her image.

A story posted last week on TMZ reports that the actress' attorneys are "currently crafting a lawsuit - demanding Rockstar Games pay some serious money for using Lindsay's image in the game." The TMZ report suggests that Lohan's claim arises from an illustrated promotional poster of a woman in a red bikini, holding a mobile phone and making the "peace" sign, in addition to a "Random Event mission" in the video game where "a Lindsay Lohan look-alike asks the player to take her home and escape the paparazzi."

Lohan is the second celebrity to be taking legal action against Rockstar Games over Grand Theft Auto V. Shortly after the game's release in October, rapper Daz Dillinger sued Rockstar over the alleged unauthorized use in the video game of two of his musical works.

http://www.videogamer.com/xbox360/gta5/news/lindsay_lohan_sues_rockstar_over_gta_5.html

http://www.tmz.com/2013/12/01/lindsay-lohan-grand-theft-auto-v-gtav-video-game-image-lawsuit/

A Record for Rockwell

Three paintings by famed American artist Norman Rockwell sold this week for almost $60 million, a new record for the artist. "Saying Grace," the best known of the three works, which depicts an elderly woman and a boy saying grace at a busy restaurant, sold for $46.08 million at Sotheby's. That figure was more than double the estimated "high sale price" for the work as well as more than three times higher than Rockwell's prior record setting sale price of $15.4 million for "Breaking Home Ties" in 2006, writes Business Insider.

http://www.businessinsider.com/three-norman-rockwell-paintings-sell-for-nearly-60-million-2013-12#ixzz2mf0ODx2A

Not So Hotfile

What's worse than Napster, Grokster and Limewire, and "indistinguishable" from Megaupload? Well, according to legal papers filed by the Motion Picture Association of America (MPAA), that would be cyberlocker Hotfile. Unfortunately for Hotfile, which was sued by the MPAA in February 2011, U.S. District Judge Kathleen Williams agreed with the plaintiff, stating in August that "the extent of infringement by Hotfile's users was staggering." She also ruled that the defendant was vicariously liable for the actions of its users. Fearing more bad news, Hotfile decided to settle with the MPAA instead of going to trial next Monday for a determination of damages. Maximum statutory damages for willful copyright infringement can be as high as $150,000 per work, meaning Hotfile was staring at a potential bill of about $500 million. On Tuesday, the parties announced that the MPAA will collect $80 million from Hotfile. Additionally, according to the MPAA, the court has ordered the defendant to cease operations unless it implements "copyright filtering technologies."

To avoid liability, Hotfile had originally tried to rely on the safe harbor provision of the Digital Millennium Copyright Act (DMCA). Judge Williams rejected that argument, however, stating that the defendant had failed to address piracy problems adequately, a prerequisite for claiming safe harbor protections under the DMCA. Hotfile, for instance, "had only terminated the accounts of 43 [users] before the lawsuit was filed," despite receiving 8 million notices of piracy problems associated with 5 million user accounts. "Aside from infringement notices," the judge continued, "Hotfile had no alternative method for preventing repeat infringements by its users." Judge Williams also chided Hotfile for not responding promptly to copyright infringement notices and for failing to designate and register a DMCA agent.

The settlement with Hotfile is another feather in the cap of the MPAA. Just two months ago, "Hollywood studios announced a $110 million deal with IsoHunt that resulted in the shutdown of the BitTorrent indexer."

http://www.hollywoodreporter.com/thr-esq/mpaa-will-collect-80-million-661668

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This page contains a single entry from the blog posted on December 6, 2013 8:50 AM.

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