Case Comments
| Publication year | 2015 |
| Author | LOWELL ANDERSON Stetina Brunda Garred & Brucker |
LOWELL ANDERSON Stetina Brunda Garred & Brucker
The actress here was not an author of her performance in a dubbed movie resulting in a fatwa against the actor. The Copyright Office's policy is to not allow a copyright claim by an individual actor or actress in their performance in a movie. The actress here neither fixed her performance in a tangible medium nor controlled the movie production. Copyright encourages public performance, not a right of privacy. The Actress' performance did not qualify for moral rights protection under 17 U.S.C. 10(A) as movies are excluded from that section. A mandatory injunction which orders a responsible party to take action requires establishing that the facts and law clearly favor relief, not simply a likelihood of success. A takedown order for the "Innocence of Muslims" was a classic prior restraint of free speech on an important issue of public interest and not likely to result in removing all copies of the movie from the internet. "[A] weak copyright claim cannot justify censorship in the guise of authorship." The district court did not abuse its discretion in denying a preliminary injunction. Garcia v. Google, Inc., 786 F.3d 733, 114 U.S.P.Q.2d 1607 (9th Cir. 2015) (en banc).
The design of a Mardi Gras Bead Dog was a derivative work of common bead dogs. Anatomical features were unprotectable as was a collar, but not a collar made of beads. There was insufficient similarity based on a collar made of bead-shaped spheres, so summary judgment of non-infringement was affirmed. Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 114 U.S.P.Q.2d 1470 (5th Cir. 2015).
"The case law indicates that sound recordings never dropped into the public domain so that people could freely exploit them. Regardless of whether §§ 980 and 983(a) applied to sound recordings, and regardless of whether sale of recordings 'published' them, California still protected these recordings post-publication through the common law." "In 1982 the legislature provided that authors of pre-1972 sound recordings have 'exclusive ownership' in their recordings (save one exception) until 2047 and abolished § 983(a)'s 'publication limitation.'" A SLAPP motion seeking dismissal of state law claims of conversion, misappropriation, Cal.Bus. & Prof. Code § 17200 and Cal.Civ.Code § 982(a) (2), based on playing pre-1972 recordings of songs by the Turtles (e.g., Happy Together), was dismissed. Flo & Eddie, Inc. v. Pandora Media, Inc., 113 U.S.P.Q.2d 2031 (C.D. Cal. 2015).
The Copyright Act did not bar an award of attorney fees under a contract as contracts require an extra element beyond copyright. California law permitting fee-shifting is not preempted under 17 U.S.C. § 301 (a) nor does contractual fee-shifting conflict with the purposes of the Copyright Act. Pro-rata apportionment of fees among cases was inappropriate where many claims involve common facts and issues. Fees included pre-litigation responses to demand letters for a DJ plaintiff. The case was remanded for redetermination of damages. Ryan v. Editions Ltd. West, Inc., 786 F.3d 754, 114 U.S.P.Q.2d 1802 (9th Cir. 2015).
An artificial flooring design created by combining selected images of new wood that was stained and marked to achieve a desired distressed appearance was subject to copyright protection. The wood grain appearance was not the product of nature and was a compilation expressing original selection and creative coordination of elements. The design was both physically and conceptually separable from the flooring as the two-dimensional image could be applied to other surfaces. A summary judgment finding no copyright protection was reversed and remanded. Home Legend, LLC v. Mannington Mills, Inc., 784 F.3d 1404, 114 U.S.P.Q.2d 1644 (11th Cir. 2015).
There is a strong presumption that the prevailing party is entitled to costs and a court must specify reasons for refusing to award taxable costs. The prevailing party has the burden of demonstrating the amount of taxable costs under relevant local laws. The district Court reviews the clerk's taxation of costs de novo. Under LR54-3(c), costs
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were taxed for depositions on issues for which the party did not prevail. Costs for expedited transcripts were denied. Costs for copying were inadequately documented and denied. Costs for accused devices not used as demonstrative evidence or exhibits were denied. Costs for trial and demonstrative exhibits were denied unless specifically identified as "trial graphics." Costs for e-discovery correctly included only "electronic preparation and duplication and, not the intellectual effort involved in the production, such as searching or analyzing the document." Costs for a secure room were withdrawn. Costs for shared trial interpreters were denied for lack of detail on the duration of a cost sharing agreement. No documentation showed a check trial interpreter was necessary so those costs were denied. Costs for deposition interpreters were affirmed. Of requested costs of $5,737,695, costs of $1,871,303 were awarded. Apple, Inc. v. Samsung Elecs. Co., 113 U.S.P.Q.2d 1996 (N.D. Cal. 2015).
A browse-wrap agreement on a website said the user agreed to the website's terms of use by using the website and the agreement may be enforced if a reasonably prudent user is on inquiry notice of the terms of the agreement. An individual posted comments on a ripoffreport.com forum saying an attorney engaged in improper conduct personally and professionally. The browse-wrap agreement granted the website an "irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and contents." The terms of use were at the end of the scroll-bar and the party posting the comments agreed to them. The attorney who sued the poster obtained an injunction against such further comments and copyright ownership of the comments. But the browse-wrap agreement transferred any copyright ownership to the website or at least transferred a license so summary judgment dismissal was granted. Small Justice LLC v. Xcentric Ventures LLC, 114 U.S.P.Q.2d 1321 (D. Mass. 2015).
"When a patent claims a range...that range is anticipated by a prior art reference if the references discloses a point within the range. [citation omitted] If the prior art discloses its own range, rather than a specific point, then the prior art is only anticipatory if it describes the claimed range with sufficient specificity such that a reasonable fact finder could conclude that there is no reasonable difference in how the invention operates over the ranges." The reference here disclosed a range but the patentee failed to raise a genuine issue of fact about whether the claimed range is critical to the operability of the invention. Summary judgment of anticipation was affirmed. Ineos USA LLC v. Berry Plastics Corp., 783 F.3d 865, 114 U.S.P.Q.2d 1568 (Fed. Cir. 2015).
A reference disclosing 15 combinations, one of which anticipated Claim 1, rendered the claim invalid even without evidence that one combination was actually performed. An IPR finding of invalidity was affirmed. Other claims were obvious. Since the prior art showed the claimed combination the offered secondary considerations resulted from something other than what was both claimed and novel in the claim so there was no nexus. Kennametal v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 114 U.S.P.Q.2d 1250 (Fed. Cir. 2015).
Whether the time for filing an appeal is extended under Fed.R.App. 4 is determined under circuit law. Under Fifth Circuit law, the court did not abuse its discretion finding no good cause or excusable neglect to warrant additional time to file a notice of appeal when notice of electronic filings regarding sealing orders that denied JMOL's was sent to 18 attorneys in two firms for AT&T. Judge DYK dissented, viewing the appeal time as running from the date the orders were entered on the docket. Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311, 114 U.S.P.Q.2d 1147 (Fed. Cir. 2015).
The AIA eliminated the jurisdiction of a federal district court to review the outcome of an interference declared after Sept. 15, 2012. The Federal Circuit has exclusive jurisdiction and here upheld the Board's finding of interference estoppel. Biogen MA, Inc. v. Japanese Found. For Cancer Res., 785 F.3d 648, 114 U.S.P.Q.2d 1669 (Fed. Cir. 2015).
While the court required appellate review for clear error those factual findings that underlie a district court's claim construction, "[t]he Court did not hold that a deferential standard of review is triggered any time a district court hears or receives extrinsic evidence." As no indications showed the court made any factual findings underlying its claim construction the court's construction of "inner lipophilic matrix" and "outer hydrophilic matrix" were reversed as a question of law. Shire Dev. LLC v. Watson Pharm, Inc., 114 U.S.P.Q.2d 1885 (Fed. Cir. 2015).
A claim requiring "a contact hole for source wiring and gate wiring connection terminals" required a separate hole for source wiring and for gate wiring. The specification disclosed separate holes in the original claims and nothing in the specification showed a deviation from the common practice of using separate holes. Eidos Displays, LLC v. AU Optronics Corp., 779 F.3d 1360, 113 U.S.P.Q.2d 1975 (Fed. Cir. 1975).
"The scope of a means-plus-function limitation is outlined not by what the specification and prosecution history do not say, but rath-
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er by what they do say" That a disclosed structure is capable of performing the claimed function is irrelevant without a clear link or association between the function recited in...
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