1. "Happy Birthday" Free of Charge – and 5 Other Notable IP Law Developments…

    [Link: New Happy Birthday Song, Copyright-Free (Bloomberg Law)] 

    For my birthday, I just want a song I can sing and play and broadcast, without having to pay royalties or licensing fees… 

    There’s a new “Happy Birthday” song in town, and its authors are hoping it will replace the “most recognized song in the English language.” 

    If you’re wondering why a new song is needed, you probably aren’t an intellectual property lawyer… The rights to “Happy Birthday to You” are owned by Time Warner, which makes an estimated $2,000,000 per year licensing the song to films, TV shows, and the like. 

    The new song was created to provide a royalty-free alternative. 

    Time will tell if the new “Happy Birthday” will catch on. In the meantime, a look at other developments in the world of IP law that may leave you, well, wondering: 

    1. Copyrighting a photograph may not block others from copying it…

    A copyright may be essential for protecting a photograph from unauthorized use, but it won’t necessarily prevent copycat similar images, write attorneys at law firm Greenberg Glusker. That’s because copyright protection “extends to an expression of an idea, not the idea itself.” For example:

    “Donald Harney, a freelance photographer on assignment for a Boston newspaper, snapped [a] photo of [Christian Karl] Gerhartsreiter [aka “Clark Rockefeller”] and his daughter as they emerged from a Palm Sunday service in 2007. The following year, the fake Rockefeller abducted the girl during a custodial visit.  The FBI used Harney’s photograph in a ‘WANTED’ poster… Sony made a television movie about Gerhartsreiter’s life and history of duping people called “Who is Clark Rockefeller?” …  For the movie, Sony created its own version of the FBI poster, which … contains some familiar elements … [with] several significant changes… 

    [Photographer Donald] Harney sued Sony and A&E Television Networks for copyright infringement.  The district court dismissed the case on grounds that the two photographs were not substantially similar, which is the sine qua non of a copyright infringement suit. The Court of Appeals for the First Circuit agreed. Though expressing sympathy for Harney, the court found that the elements of the photo which the defendants mimicked were not protectable, and hence not copyrightable.” Read on»

    2. 3D printers may spell the end of current IP laws

    A recent lawsuit between HBO and Fernando Sosa, a design entrepreneur who created an iPhone dock modeled after a throne in the cable network’s hit series Games of Thrones, calls into question existing intellectual property laws, writes David Kluft of Foley Hoag

    “At first glance, this doesn’t look like anything new.  Presumably, HBO pursues unlicensed derivative products all the time, and who really cares how those products were created?  Fair enough. But the real excitement over 3D printer legal issues is not about the mundane present, but about the future potential for mayhem as the technology gets better and cheaper.  That mayhem may be doubly complex because 3D printer technology arguably involves two types of work: the 3D object itself and the digital model that was authored to create that object.  From one perspective, that means two potentially infringing works. From another, two potentially protectable works.

    So what does the near future hold? Will I be able to walk into a furniture store, make a 3D scan of a chair with my iPhone, turn that scan into a digital model and recreate it on a large 3D printer?  If I tried to sell the chair, that may be a Lanham Act violation.  But what if I just copied the chair for my house?  Is it copyright infringement? Is it fair use?  And putting aside the 3D object itself, do I now have a separate protectable copyright in the digital model that I authored in order to create my new 3D object, and what is the scope of that protection? … 

    These issues no doubt just scratch the surface, and no court has addressed any of them yet. When they finally do, the outcomes are likely to be unpredictable and inconsistent, at least at first. Some commentators already predict that, if existing legal protections cannot provide sufficient shelter from the economic implications of 3D printer technology, corporate America will begin lobbying for the expansion of existing IP law, or even perhaps a whole new species intellectual property protection.” Read on»

    3. Can you trademark a hand gesture (no, not THAT one…)? 

    What do hook ‘em horns, two outs, metal horns, and Ronnie Dio’s signature symbol all have in common? They’re communicated using essentially the same hand gesture. But the University of Texas wants to block an English t-shirt manufacturer from using the gesture on his clothing. Tim Sitzmann of Winthrop & Weinstine explains:

    “Hold your hand up and make a closed fist. Raise your index finger, and now your pinky. Now look at your hand, what does this symbol mean to you? If you said ‘Hook ‘em Horns,’ the University of Texas would love for you to participate in a survey in the coming months… 

    The University claims that the use of the [‘Hook ‘em Horns’] logo on these t-shirts would create a likelihood of confusion as to the source of the t-shirts. Although Texas has federal registered trademarks for various HOOK ‘EM HORNS wordmarks, they do not appear to have any registered logos or designs for the hand symbol. The alleged infringer in the lawsuit is a man located in England who sells t-shirts and other merchandise under the company name Horns, Inc… The case raises an interesting issue of whether a hand symbol can serve a source-identification function.” Read on»

    4. Bob Dylan: The Copyright Extension Collection Vol. 1

    Dylan fans have European copyright law to thank for a new 86-track collection featuring studio outtakes, live recordings, and other works by the artist. From David McMillan and Dennis Cohen of law firm BakerHostetler:

    “[A European Union] Directive, issued September 2011, extends the term of protection for sound recording copyrights by 20 years—from 50 years to 70 years. But there’s a catch: the copyright holder must ‘use it or lose it’—to qualify for protection, the work must be published within 50 years of creation. Recordings by many well-known acts from the British Invasion of the early 1960’s—including the Beatles, the Rolling Stones, the Who and the Yardbirds—are bumping up against that cutoff. Sony recognized that the 50-year window’s expiration was approaching and released the tracks, gaining the benefit of the extension.

    If not released before January 1, 2013, the works would have been dedicated to the public domain in the EU—free for anyone to exploit without requiring the permission of or payment to Sony, Dylan, and/or anyone else.” Read on»

    5. Ron Paul squares off against supporters of … Ron Paul

    Ron Paul has turned to the World Intellectual Property Organization for help in wresting the domains ronpaul.org and ronpaul.com from people he alleges are “using the domain names in bad faith, for commercial gain, by trading on the value of his famous RON PAUL trademark.” Why is this news? Because, writes Joshua Jarvis of law firm Foley Hoag:

    “these bad-faith users purport to be independent grassroots supporters of Ron Paul, his politics, and his vision for America.”

    Does he have a case? It doesn’t look good, writes Jarvis:

    “Unless the parties decide to suspend the [the Uniform Domain Name Dispute Resolution Policy] process [filed by Ron Paul] and settle the matter … it seems likely that the [domain name] registrant will indeed respond and attempt to prevent its valuable rallying point — and asset — from falling into the hands of the very man it purports to admire and support.” Read on»


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