Tuesday, July 25, 2017

Court Rejects Lawyer's Copyright Claim for Indy Skyline Photo -- At Least For Now

A recent Indiana Federal District Court decision carries a lesson for copyright trolls, but also for those who simply grab photos from the internet for use in websites and elsewhere.

On July 24, the Court denied summary judgment to both sides in a dispute over whether the defendant violated a lawyer's copyright in a photo of the Indianapolis skyline.

Indianapolis lawyer Richard Bell has been suing hundreds of people for copyright infringement for using the photo of the Indianapolis skyline on their websites, blogs and elsewhere, without payment (some would say tribute"). But turns out, he may not have the copyright on the photo after all.  

That's the position of the defendant, forensic consultant Michael Maloney. 

There is no question that Bell took the photo in 2000 with his own camera. There is no question that he filed to copyright the photo in 2011. two years after he left his longtime employment with Indianapolis law firm Cohen & Malad.

But at the time Bell took the photo, he was employed by Cohen and Malad. He took the photo for the firm's website, which was being compiled by West Publishing. 

Because Bell took the photo while employed at Cohen & Malad, an issue of fact exists as to whether it was a "work for hire" and that the copyright belonged to the law firm, not the lawyer who took the photo.  

Work for hire is a basic doctrine of copyright and patent law. When a staff scientist invents an better widget, the scientist doesn't own the patent. Instead it belongs to the company who employed him.  Same is true with a staff writer who authors an article for a magazine. 

The case of Bell v. Michael Maloney will now be set for trial in the United States District Court in Indianapolis, at which time ownership of the copyright will be determined.

LESSONS:  There are several important lessons in this case.

1.  Most importantly, it reaffirms the importance of having ownership or a license for the art work you use on your website, blog or elsewhere. You cannot simply copy a photo from someone else's website and use it. That's how Bell was operating his cottage industry of enforcing hefty payments for those who unwittingly used the skyline of Indianapolis photo.

2. Even if you are successful in defending your use of a photo, it is VERY EXPENSIVE. Defending cases in federal court is not cheap.

3. If you undertake to write a story or take a photo for someone, or even if you hire someone to design a website for your, make sure you have a contract which specifies whether it is, or is not, a work for hire.

Sunday, March 20, 2016

Gawker Body-Slammed by Hulk Hogan; Privacy Exists for Public Figures

Terry Bollea a/k/a Hulk Hogan*
Hulk Hogan -- real name Terry G. Bollea -- delivered a bodyslam of financially fatal magnitude to sensational gossip website Gawker.com and its owner Nick Denton.  A Penellis County, Florida jury (Clearwater / St. Petersburg) awarded $115 million damages to Bollea ("Hogan") for economic loss and emotional distress cause by Gawker posting a segment of a grainy black and white of the wrestling megastar having sex with a now former friend's wife back in the mid-2000s.

For Gawker, the worst may be yet to come. The award was only for economic loss and emotional distress. Yet to come is the punitive damage portion of the trial where Gawker will have to disclose its corporate finances and Denton may have to disclose his personal wealth. And when the jury is done, most of that wealth could end up in the bank account of Hulk Hogan ("Bollea").

Gawker, Denton and its lawyer were unrepentant in their defense, and remain so after the verdict. They argued that Hogan was a public figure who had made statements making his sex life a matter of public interest. Gawker has already indicated it will appeal.

This is a clear warning show for websites, journalists, writers, gossips, and even those who post on social media. The protections for statements about public figures provided by the landmark 1964 New York Times vs. Sullivan Supreme Court decision has its limits.  The jury in this case clearly was appalled by Gawker's conduct. It drew a line at posting surreptitiously recorded videos of a person having sex, no matter how much of a public figure they are.

My thoughts on where this case goes from here?  Barring reversible issues on discovery rulings, evidentiary rulings and jury instructions, I expect that Gawker's liability will be upheld, including its liability for eventual punitive damages. However I would be shocked if the courts let a jury verdict in this amount stand. I expect that through post-trial motions, the trial judge will reduce the verdict. On appeal, the appellate courts may whittle away at it further. But when all is said and done, this verdict will still likely put an 8-figure dent in the Gawker bank account.

* Photo licensed for public use

Tuesday, November 10, 2015

Court Rules: No Copyright for Recipes

Great Aunt Minnie may have had a special sugar cookie recipe that she passed down only with pledges to keep it among the great secrets of the universe. But as treasured as it is, it's not protected by Copyright.

A recent ruling by the Sixth Circuit in a case involving former business partners confirmed that the list of ingredients and directions that comprise a recipe are no more protected than the list of names and numbers in a phone book.

The dispute arose between former restaurant partners Rosemarie Carroll and Larry Moore. After the pair split the forks, so to speak, Moore copied the recipes in Carroll's “Tomaydo-Tomahhdo Recipe Book”.

The Court held that when recipe books add enough additional editorial material, such as photos or anecdotes, the book can be copyrighted as a whole. But that still does not copyright the list of ingredients and basic directions, which the Court equated to an alphabetical listing in the white pages of a phone book.

So feel free to share all those Thanksgiving recipes!

Tuesday, September 2, 2014

Teacher Suspended, Travel Restricted, Police Raid Home -- for Writing Novel

Sometimes you wonder if those who run police departments, those who run our schools, have
ever read the First Amendment. Indeed, sometimes you wonder if they have ever read anything at all.

A teacher has been suspended, taken into custody and subjected to psychiatric examination. Where did such an outrage occur? The Soviet Union in the days of Solzhenitsyn? North Korea?  Maybe Iran?

Nope.  It took place just a few days ago in Maryland.  Maryland in the Good Ol' Frickin' First Amendment U S of A.

The current online Atlantic Magazine contains one of the most disturbing stories I have ever read. And if you care anything about writing, and the right to write, you should be disturbed, too. To read the full article, CLICK HERE.

Patrick McLaw, a 23-year-old middle school English teacher at Lane Middle School in Cambridge, Maryland has been taken into custody, suspended from his teaching job, and forced to undergo psychiatric evaluation for writing a novel.  Police have used K-9 dogs and searched his house and the school.  They proudly announced that Mr. McLaw "does not have the ability to travel anywhere."

The Insurrectionist, published under the pseudonym Dr. K. S. Voltaer, is set 900 years in the future. Following the largest mass killing at a school in history, agents of a secret government agency begin tracing clues that lead to threats for an even larger mass-killing at the nation's largest school.  The book was published in 2011 by Northern Imperial Publishing, and is available on Amazon.

I haven't read the book, so I don't know how good it is. But It sounds like a decent premise for a futuristic thriller.

But because the subject of the  novel is a mass school killing -- 900 years in the future! -- the school district suspended Mr. McLaw, he was thrown in a psyche ward, and police are investigating, including a complete search of the school which according to cow-towing local media, a sweep of the Lane Middle School for bombs and guns, which turned up nothing.

Gee.  Imaging that.

I recently met Tricia Fields, the Hillerman Award-winning author of The Territory. It is a taut thriller set among drugs and guns along the Texas-Mexico border.  Tricia's day-job is at a small town Indiana school corporation. Good thing she isn't teaching in Maryland or she would be suspended, and the school system would be searched for drugs and guns.

After all, she wrote about that.

But there's more.  Mr. McLaw used "aliases."  In fact, the local newspaper (which should be ashamed of its coverage), began with the lead calling McLaw "a man with many names."

Of course, in the literary world, publishing a book under a different name is referred to as a pen names, or sometimes pseudonym, not an alias.  And it is a common practice for many reasons. Sometimes it is to change gender. Sometimes it is for marketing. Sometimes it is because you are writing something that is outside your profession or your general area in which you write.

Mary Ann Evans could not get published as a woman, so she wrote Silas Marner under the pen name George Elliott.  Stephen King published many books, including some of his best short writing, under the name Richard Bachman.  Of course, perhaps America's greatest novelist was Samuel Clemens, who never published a book under his real name, using the moniker from the riverboat days of his youth - Mark Twain.

The list of pen names is nearly endless.

But so too is the absurdity of small minded people.

Maybe a remedial course in fundamental civil liberties might be in order in eastern Maryland.

Wednesday, August 20, 2014

Using Blog Post As Evidence Is Fair Use; Not Prohibited Copyright Violation

A blog post can be used in its entirety as evidence without violating the author's copyright. That's the ruling of the United States District Court in Northern Illinois in the case of Denison v. Larkin.

The case came up in an unusual fashion. Denison, an Illinois attorney, was charged with a disciplinary offense for scathing posts accusing the Cook County Illinois Probate Court and its guardian ad litem of corruption, elder abuse, and taking action that physically and emotionally harmed her 90-year-old Mary Sykes.

Denison was charged with violating the Code of Professional Conduct by her accusations. Setting aside the First Amendment issue (which is substantial), Denison challenged the action by suing her accusers in federal court for violating her copyright by utilizing the entirety of her blog post in the disciplinary complaint.

Judge Amy J. St. Eve of the Northern District of Illinois had no problem finding for the defendants and dismissing Denison's complaint.  The Court discussed the touchstones for determining whether something falls within fair use:  The purpose and character of the use; the nature of the work; the amount of the work used; and the market effect.  The court found that under the facts of the case, each of these factors favored the defendants.

Perhaps more importantly, the court noted that in enacting the Copyright law, the House Judiciary Committee stated that "reproduction of a work in legislative or judicial proceedings or reports" is fair use. Further, the U.S. Seventh Circuit (the circuit in which Illinois is located) has held that "reproducing copyrighted works for litigation is an example of the fair use doctrine."

So when you write that blog, remember that it could someday be labeled Exhibit A.

Friday, August 15, 2014

The Dark Knight Gets A "Clean Slate": Lawyers, Batgirl & Fictional Technology

Wonder why lawyers seem so "anal" over intellectual property rights?  Here's an example.
Dirksen Building - home of 7th Circuit Court of Appeals

During the mega-hit movie "The Dark Knight Rises," Catwoman extracts a promise from Batman for her help -- a "clean slate" removing her entire criminal history from every law enforcement computer in the world.  After her contribution to saving Gotham, Bruce Wayne makes sure Catwoman's criminal history is erased from every computer.

But suprise! There actually is a product called Clean Slate.  And Fortres Grand, maker of the software, has lawyers.

And those lawyers sued Warner Brothers asserting that the fictional "clean slate" alluded to in the movie would cause confusion with its own software, a utility that "cleans" the history from your web browser.

The U.S. 7th Circuit Court of Appeals in Chicago held for the film makers, ruling that there was not a substantial risk of confusion cause by the fictional reference to a clean slate in the Batman movie. Judge Manion, writing for the Court, found that the software company's allegation of reverse confusion was "implausible."

So Warner Brothers won. But at what cost?  First there are lawyers fees that can ratchet up at $500 to $1,000 an hour for big firm partners.  There there are expenses.  In addition to lawyer time, court reporters will charge perhaps $1,200 or more for the transcript of a day-long deposition. Then there are the hidden costs of lost time, productivity and energy of executives, in-house lawyers, risk management people, and others involved in the project who are dragged into the lawsuit.

The real lesson is that even the most innocent of references, even to a fictional "product", can bring down the wrath of intellectual property litigators and patent trolls.  It is why lawyers are often so cautious, even to the point of being perceived as "anal," in finding problems and issues where most people, including writers, see none.

While many lament that a lawyer "can find a gray cloud in every silver lining." that is often the most important part of what lawyers do.

photo credit: <a href="https://www.flickr.com/photos/kenlund/11004376983/">Ken Lund</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-sa/2.0/">cc</a>

Friday, July 18, 2014

Sherlock Holmes and the Case of the Disappearing Copyright

Want to write your own Sherlock Holmes story?  Or even publish your own favorite Sherlock Holmes stories?  Have at it. That's the ruling of the United States Seventh Circuit Court of Appeals, which has held that the copyright on Arthur Conan Doyle's famous detective has lapsed and the characters and stories are now part of the public domain.

Just this week, the United States Supreme Court refused to stay the Seventh Circuit's decision pending the high court's decision on whether to hear the case.

The case arose out of two collection of short stories written by author Leslie Klinger.  The first book, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon, was published in 2011 by Random House. Despite Klinger's objection, Random House paid a $5,000 royalty to the Doyle Estate to publish the book.

When Klingler and her new publisher, Pegasus Books, were ready to publish her sequel, In the Company of Sherlock Holmes, they refused to pay the royalty and Doyle's estate sued.  And lost.

The last ten Sherlock Holmes stories remain under copyright protection.  The copyrights on those stories expire between 2018 and 2022.  But the character of Sherlock Holmes, Dr. Watson, Lestrade and Moriarty are no longer under copyright protection -- unless the U.S. Supreme Court takes the case and reverses the Court of Appeals decision, something that is not expected.

For the Seventh Circuit's decision, CLICK HERE.

Note: There has been a paucity of posts on this blog over the past seven or eight months. I have been working on my own writing project, a second novel tentatively titled Deadly Innocence. That novel is now finished, so I hope to be posting on this blog more frequently.  That is, until another writing bug hits me.  -- SMT

*photo credit: <a href="https://www.flickr.com/photos/vercettisworld/14154672292/">GregHausM.D.</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>