Is it abusive for a company alleging copyright infringement to uncloak the anonymity of users of adult content in an effort to embarrass them into settling marginal claims? That issue was considered by the Court in Amselfilm Productions v. Swarm, 6A6DC, 12-cv-3865.
In that case, the plaintiff clearly was the object of infringing conduct by persons using BitTorrent – a peer to peer method of sharing content anonymously. The only question was whether the plaintiff could issue blanket subpoenas to obtain the IP addresses of the groups (“swarms”) of BitTorrent users and then coerce these individuals to obtain individual settlements with them. The implication was that if these individuals did not settle, their names would be made public, causing embarrassment over the fact that they potentially had downloaded adult content. This became a particularly important issue because so many of the claims of infringement were relatively unsubstantiated, i.e., how does one prove that any one individual within the larger “swarm” specifically downloaded specific content on a specific day?
The Court found that this was a misuse of legal process and procedure and prohibited employing such subpoenas without more of a showing of a particularized set of circumstances. In other words, there would have to be some level of demonstration suggesting that a particular individual had downloaded specific infringing content.
This case is one of many throughout the U.S. in which the practice of issuing blanket subpoenas successfully has been challenged.
© 2014 Nissenbaum Law Group, LLC
Marilyn Monroe passed away in 1962. Her estate has zealously enforced her trademark and other intellectual property rights from those who would infringe upon it. However, there are other common law rights that might apply, such as the right of publicity, which would likewise bar someone from using her name and likeness. The question that was before the Ninth Circuit Federal Court of Appeals in August of 2012 was whether that right of publicity could be applied in Marilyn Monroe’s case. Archives v. Monroe, 692 F.3d 983, (9thCir. 2012).
The twist in that case was that the Court had to determine whether Monroe was a resident of New York or California at the time that she passed away. If she had been a resident of New York, she would have no right of publicity since that state does not provide for such a right after death. If she were a resident of California at the time that she passed away, she would have such a right since California amended its law to provide for such Monroe’s estate in particular to be able to avail itself of that protection.
The Court determined that Monroe did not have such a right since she was a resident of New York at the time that she was deceased. Although she had moved to California and committed suicide there the estate had taken the position in previous cases that she was a resident of New York. Therefore under a theory of judicial estoppel, the Court found the estate was not allowed to make a contrary assertion in this later suit just because it was more advantageous.
© 2014 Nissenbaum Law Group, LLC
How can a party determine if your expert’s opinion will adequately support your position? In the recent case of Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013), [READ CASE HERE] the Court addressed this issue when it considered the adequacy of an expert’s opinion on damages.
In that case, Anthony Lawrence Dash filed a lawsuit against Floyd Mayweather and the World Wrestling Entertainment (WWE) claiming that Mayweather and WWE had committed copyright infringement after using Dash’s beat track without his permission. All parties agreed that the use of his song did not increase the revenue after it was played at Wrestlemania XXIV and the August 24, 2009 TV show, RAW. Dash v. Mayweather, 731 F.3d 303, 308 (4th Cir. 2013). In light of that, the parties filed a joint motion requesting that the Court make a determination with respect to damages.
Dash used an expert who determined that his damages were worth over one million dollars. The Court dismissed Dash’s case because it found the expert’s analysis to be too speculative. In addition, the Court did not agree with the expert’s use of other artists, such as Fuel, Red Hot Chili Peppers and Snoop Dogg, who have licenses with WWE for the valuation of the license fees in Dash’s case. The Court said that Dash needed to compare himself to other comparable artists. Since he had nothing to substantiate that there were comparable artists to which he could be compared, his claim failed. He never made a profit from the track used; he could not use establish the value of his license fees.
Section 504(b) of the Copyright Act [READ STATURE HERE] allows a copyright owner to obtain the owner’s actual damages and the infringer’s profits attributable to the infringed work. However, it is necessary to offer sufficient evidence to meet the standard of proof. The copyright owner has to show a reasonable nexus between the infringement and the defendant’s attributable profits.
On this basis, the DashCourt ruled that he needed to show more than just the use of the copyrighted material. Since he could not demonstrate damages in a manner that satisfied his burden of proof, his claim was not successful.
© 2014 Nissenbaum Law Group, LLC
May a movie studio fail to pay its workers a wage simply by calling their job an internship? Glatt v. Fox Searchlight Pictures Inc., United States District Court for the Southern District of New York (Civil Action No. 11-cv-06784) (WHP) answered that question in the negative.
In that case, Fox Searchlight Pictures Inc. (“Fox”) hired the plaintiffs to perform basic chores such as taking lunch orders, answering phones, arranging travel plans, tracking purchase orders, taking out trash and assembling office furniture. This mirrored the same duties that were being performed by paid employees. However, the plaintiffs were not paid solely because they were designated as interns.
The plaintiffs sued, taking the position that this violated the Department of Labor standards. Those standards indicate that internships should not be to the immediate advantage of employer, but instead should be structured as an extension of their training and an adjunct to their schooling. Interns should not be doing the work of employees, since the duties of an employee are not primarily related to teaching the employee, so much as benefiting the employer. The Court ruled in favor of the plaintiffs.
This case is consistent with the general trend to force employers to pay for work that an employee should be doing, regardless of whether the employee is designated as an intern. A similar ruling has been brought against Harper’s Bazaar. Additionally. Charlie Rose’s production company, Charlie Rose, Inc., settled with nearly 200 former interns by providing them with back-wages.
Does the statute of limitations for an Internet defamation claim begin to run again every time the defamatory statement is republished? This question was addressed in a recent case entitled, Solomon v Gannett Co., Inc., Superior Court of New Jersey, Appellate Division (Docket No. A-6160-11T4).
In that case, the plaintiff was the subject of a news article posted on the Internet which reported that a police raid of his home had resulted in the seizure of two loaded .357 caliber handguns and a “slew of drugs and gun charges”. The plaintiff stated that this was defamatory because the guns that were seized were unloaded and the raid did not result in a “slew” of charges.
Unfortunately the plaintiff filed a lawsuit one year after the initial publication on the website. Since the statute of limitations in New Jersey for defamation is one year, the defendant filed the motion to dismiss the case as time-barred.
The plaintiff took the position that it was not time-barred because it had been republished each time the defendant changed ads on the site “to reach a new or broader audience.”