MediaTech Law

By MIRSKY & COMPANY, PLLC

Did the Richard Prince Fair Use Case Just Swallow Copyright Law? Add Some Blue to the Other Guy’s Photo, Call it Fair Use – Really?

Posted May 14, 2013 by Andrew Mirsky 0

Fair use update: I wrote last year about the fair use case in New York involving photographer Richard Prince, where a federal district court rejected Prince’s claim of fair use of photographer Patrick Cariou’s photos of Rastafarians.

Prince appealed his defeat and late last month won a reversal from the US Court of Appeals for the Second Circuit, in New York.  The case may not be all that useful guidance for would-be artists on the limits of fair use – more on this below – but more of a legal scrum over what is (or is not) a “transformative” use of a previously copyrighted artwork.  Or more particularly, how much a court should get involved in evaluating whether a later user’s re-use of an earlier artist’s work is “transformative” at all.

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Copyright from Beyond the Grave: William Faulkner Sues … Woody Allen?

Posted March 1, 2013 by Andrew Mirsky 0

How can Woody Allen infringe the copyright of William Faulkner, who has been dead since 1962?  Wouldn’t Faulkner’s works be in the public domain?  Turns out … no, and the case illustrates many aspects of copyright law basics.  Whether or not Allen’s 2011 film, Midnight in Paris, actually infringed Faulkner’s copyright.

Copyright has expired for all works published in the United States before 1923.  1923 is significant because in 1998, 75 years after 1923, Congress amended the Copyright Act (the “Sonny Bono Copyright Term Extension Act“) such that no new works would fall into the public domain until 2019.  In 2019, public domain for works published in 1923 would kick in, with 1924 next, then 1925 and so on.  In other words, as to all works from 1923 and later that had not already fallen in the public domain by 1998, copyrights were extended until at least 2019. 

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Dirty Needle: Tattoo Parlor Sues Competitor for Defamation

Posted November 9, 2011 by Kate Tummarello 0

Two dueling tattoo parlors down the road from one another in Mobile, Alabama. It could be the premise of a TLC reality show.  It’s not (yet) a TV show, but it IS a court case recently decided by the Alabama Court of Civil Appeals. In September, that court ruled in favor of Chassity Ebbole, owner of “LA Body Art” tattoo parlor in Mobile, who had sued the owners of the competing “Demented Needle” tattoo shop for libel and wrongful invasion of privacy.

Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.

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Does Demand Media Really “Suck”? Fair Use and Freedom to Bash Your Boss

Posted August 3, 2011 by Kate Tummarello 0

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances.  A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com.  Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.”  The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys.  Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism.  “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.”  A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims.  A fair use argument cannot simply succeed on its merits where other legal rights are violated.  Context matters.  So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation.  Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

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Podcast #7: Privacy vs. 1st Amendment – Supreme Court case of IMS Health v. Sorrell

Posted March 30, 2011 by Andrew Mirsky 0

 

In January, the Supreme Court agreed to hear arguments in the case of IMS Health v. Sorrell, an appeal of a ruling in November in favor of data aggregator IMS Health by the U.S. Court of Appeals for the 2nd Circuit. The case involves a 2007 Vermont statute, similar to laws in many other states, that prohibits the use, sale and transfer of prescriber-identifiable data (referred to as “PI Data”) for marketing purposes, unless a prescriber (meaning: a physician) opts in to allow use of his or her PI Data. The State of Vermont and its supporters argue that any 1st Amendment challenges to the law by users of the PI Data are sufficiently overcome by substantial privacy interests of doctors and their patients.

To discuss these issues, my guest today is John Verdi, Senior Counsel of the Electronic Privacy Information Center (EPIC).  John and EPIC have filed an amicus brief in the Supreme Court in support of Vermont’s position, and I’ve asked John to join me today to briefly discuss the privacy issues involved.

Please click the link below for the podcast.

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