was another big week for intellectual property at the Supreme
Court, with the opinion in ABC v Aereo being
can read our report on ABC v Aereo
here, and view our round-up of the best reactions from
around the internet
is a selection of other intellectual property stories
attracting attention on the internet in the past week that were
not covered on www.managingip.com (see the
bottom of this blog post for the top stories published by
Managing IP this week).
Superhero fight may make it
to Supreme Court
The International Intellectual Property
chairman Bruce Lehman and senior board member Ralph Oman,
have filed an amicus
brief at the US Supreme Court in support of the
heirs of author and cartoonist, Jack Kirby, who created some of
the most famous comic book characters and storylines
Avengers, The Amazing Spider-Man, and
The Fantastic Four.
The case is Kirby v Marvel.
Lehman, a former USPTO director and Oman,
former US Register of Copyrights, worked together in the 1970s
as lawyers for the House and Senate Judiciary Committees
drafting the 1976 Copyright Act.
asked the high court to grant the certiorari petition
of Kirby’s four children seeking review and
reversal of a Second Circuit Federal Appeals Court decision
that stripped the Kirbys of a right to recind previous
transfers of copyrights to their father’s
publisher, Marvel Comics. The so-called "termination right"
permits authors and their heirs to take back previously
transferred copyrights for the additional 19 years of copyright
term Congress provided in the 1976 Act.
their amicus brief on behalf of IIPI, the 60,000
member Artists’ Rights Society, 12
artists’ professional organisations, Doonesbury
creator Gary Trudeau and five other Pulitzer Prize wining
cartoonists, Lehman and Oman argue that Second Circuit failed
to follow Supreme Court precedent in the 1989 case of CCNV
v Reid . That case held that work commissioned from a
freelance artist could not be "work-made-for-hire" of the kind
created by a salaried employee and adopted the position laid
out in an amicus brief Oman had filed as Register of
their brief Lehman and Oman reviewed moe than 70 years of
judicial precedent and legislative history and concluded that
the Second Circuit had disregarded the definition of "employer"
as "it was universally understood at the time Jack Kirby
created works in question" and rendered "meaningless the
termination right established for the benefit of freelance
authors and artists" under the 1976 Act.
explaining the decision to intervene on behalf of the Kirby
family Lehman stated: "When the founders of this country wrote
copyrights and patents into the Constitution they clearly were
thinking of the need to incent and reward the creative genious
of individual human beings. They would be appalled if they knew
that centuries later deep pocket interests could twist their
words into a 'game of gotcha’ to deny authors and
inventors the rights they intended to bestow."
A damaging report
More than $15 billion in damages, fees, costs and interest have
been awarded over the past 14 years in the US, according to the
new Patent Litigation Damages Report
released by Lex Machina.
The paper analyses both total and median damages awarded in
36,629 patent cases filed and terminated from 2000 through
While only 708 cases – or 1.9% – involve
damage awards, total awards made in these cases involved large
dollar amounts. The more than $15 billion in damages, fees,
costs and interest awarded over the past 14 years includes $13
billion in compensatory damages, almost $1 billion in enhanced
damages and more than $200 million in attorneys’
The 10 largest awards, including three for $1 billion or more,
account for nearly half the $15 billion total, while the median
compensatory award of around $400,000 is far less than the
typical cost of litigating a patent case to verdict. The report
says this highlights a disconnect between the $3 million to $5
million required to take a patent case through trial and the
remote chances of recovering that amount as damages.
Whining over .wine, but no
European government ministers have failed
to agree on objection to the .wine and .vin generic top-level
domains. France, Italy, Luxembourg, Portugal, Spain,
Switzerland and the UK want special protection for some
"There was further discussion on the issue
of .win/.vinm, but no agreement was reached because of the
sensitive nature of the matter,"
said ICANN, which held a
meeting in London this week. "The matter of .wine and .vin was
raised at the High Level Governmental Meeting, where some
members expressed concerns in terms of ICANN’s
accountability and public policy. These concerns are not shared
by all members."
objecting to the gTLDs feel terms such as "Champagne" and
Bordeaux" should be reserved to prevent those outside the
geographical indications regions selling goods on websites that
include the indications.
France has been particularly vocal in its
anger at ICANN. French minister Axele Lemaire said the
association needed to be more transparent in the run-up to
ICANN’s meeting in London this week.
letter to ICANN, Lemaire said: "The lack of adequate redress
mechanisms and, above all, the lack of accountability
demonstrate the need for significant reform of ICANN even
before the current debate on the global internet governance
system comes to a conclusion."
Pitbull in doghouse with
songwriters are seeking $3 million in damages, alleging their
1978 song "
San Francisco Bay" was
used without permission in the Pitbull featuring Ke$ha song "Timber", which was a number one
hit in the US.
papers filed in Manhattan Federal Court, Lee Oskar, Keri Oskar
and Greg Errico say Pitbull’s song borrows from
theirs and that his record label has not been paying them for
suit says the harmonica player on "Timber’
had been told to "emulate" Lee
Oskar’s harmonica performance on "San
Francisco Bay". The suit notes that Sony,
Pitbull’s label, "might have obtained a licence"
to use 'San Francisco Bay" but did not get it from the
songwriters. Pitbull and Ke$ha are not defendants in the
EFF slams "trade mark
Electronic Frontier Foundation (EFF)
has taken on law firm Jones
Day, accusing it of acting like a "trade mark
sent a cease and desist
letter to the registrant of a website critical of
Detroit’s emergency manager, who is a former Jones
Day partner. The website criticises Kevyn Orr,
Jones Day, and other individuals and corporations, and includes
the logos of a number of corporations under the tagline:
"Detroit’s Economic Coup d’Etat has
been brought to you by …"
Jones Day demanded that
its trade marks be removed from the site. EFF stepped in on
behalf of the website’s creator,
responding to Jones Day
that the website does not violate any of the law
firm’s rights an advising it to withdraw what EFF
calls its "spurious and censorious, demand".
"In its letter, Jones
Day suggested that copyright fair use would not protect our
client’s use of its trade marks," said EFF. "But
surely Jones Day should know that trademark law includes its
own fair use protection, including the
nominative fair use doctrine which protects the use of
marks for the purposes of comparison or criticism. As we note
in our letter, the copyright reference smacks of a deliberate
effort to intimidate and confuse a target the firm expected to
be unfamiliar with the law."
Managing IP published the following
stories this week, available to subscribers and
French IP firm
opens Africa office
UK consults on
plain packaging – again
takes on Japanese rivals in Delaware
China releases new
draft revision to Copyright Law
UK set for new
rules on copyright collective licensing
Aereo's cloud impact despite "limited
preliminary Alice v CLS guidance
Broadcasters win in
Supreme Court’s ABC v Aereo
The best women
lawyers, and best firms for women
biotech's biggest filers
ADNDRC releases its
first URS decisions
Protecting the World Cup trade marks
Snap reaction to
Supreme Court’s Alice v CLS
Act changes get Royal Assent
From the blog:
Reactions to US
Supreme Court ruling 6-3 against Aereo
In the debate about
IP enforcement, words matter
Alice v CLS
reaction from around the internet
Half of the human