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Getty, top patent practitioner companies, Donald Trump, venue reform, Stephen Colbert – the week in IP



Michael Loney


A suit accusing Getty of charging a photographer for her own photo, a war of words between law professors over venue reform, the companies with the most patent practitioners, the copyright issues at play when Donald Trump plays songs by bands that do not like him, and Stephen Colbert being told he does not own the IP for “Stephen Colbert” were in the intellectual property headlines in the past week

Also on the blog in the past week were:

Patent litigation cools in the Eastern District of Texas

We’ve also posted the following articles in the past week (log in via subscription or free trial):

Making sense of US patent litigation in 2016’s first half

Limelight and Akamai convert $51m damages award into licence

Judge vacates VirnetX’s $626m damages award in Apple case

Unitary Patent and UPC: A progress report (July 2016)

Unified Patents files PTAB challenges to 2016’s three busiest NPEs

Research reveals 76% of UK higher education staff support IP teaching

Interview: Ruth Soetendorp, IP educator and outgoing chair of IPAN

Latest people moves in the US

Federal Circuit reverses PTAB for shifting burden of proof to patent owner        


Getty accused of misappropriating photos

A photographer has sued Getty Images in the Southern District of New York, accusing it of selling copyright licences for more than 18,000 photos that she donated to the public for free, reports Ars Technica.  

Carol Highsmith began donating her work to the public as early as 1988.

“The Defendants have apparently misappropriated Ms Highsmith’s generous gift to the American people,” says the suit. “The Defendants are not only unlawfully charging licensing fees to people and organisations who were already authorised to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.”

Highsmith Getty complaint
An image from the lawsuit
The suit adds “Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.”


The suit contends that in addition to licensing the photo, Getty has also sent letters accusing people without a licence of infringing the copyright. This included Highsmith’s non-profit group This is America! Foundation being asked for $120 in payment. After Highsmith spent half an hour arguing that not only did she take the photo in question but also donated its use to the public, the copyright enforcement entity for Getty generously sent an email saying it considered the matter “closed”.

Getty responded to the suit in a statement: “We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously.”

After a few days it added to that the argument: “Image libraries, archives and other businesses have long collected and aggregated content in the public domain, investing significant sums of money, time and resources in indexing, archiving, digitizing and making that content searchable and easily available to people to make productive use of it.

 “Some of the services Getty Images provides its users in addition to the above are image search tools and research support to assist them in locating the right image for their needs. We provide a variety of delivery services for users, with images being delivered by API or RSS feed or other mechanisms that suit their specific workflow and requirements. Getty Images also provides customers with legal indemnities for the use of images.

 “Image libraries are legally permitted to charge fees for use of images in the public domain.”

Law360 reports today that Getty has been hit with another lawsuit. This one from press agency Zuma Press that accuses it of copying more than 47,000 of its sports images and replacing Zuma’s credit with its own.

“Getty has quickly become the content creators’ worst detractor, recklessly aggregating content, acquiring more images than it can responsibly administer and belligerently enforcing whatever imperfect rights it might have in those images,” the suit says.


Law professors in war of letters

Senator Jeff FlakeA group of 28 law professors and economists has sent a letter to the Senate Judiciary Committee expressing serious concerns about the push for sweeping changes to patent litigation venue rules, such as those proposed in the VENUE Act, which was introduced by Senator Jeff Flake (right) in March.

The letter said that “the arguments in favour of this unprecedented move to restrict venue do not stand up to scrutiny”. The letter makes a number of arguments itself:

–        Filings of patent lawsuits in the Eastern District of Texas have dropped substantially this year, “suggesting a cautious approach until trends have stabilised”.

–        Legislative proposals like the VENUE Act would not spread lawsuits throughout the country. Restricting venue in a manner similar to the VENUE Act would likely result in concentrating more than 50% of patent lawsuits in two districts: the District of Delaware and the Northern District of California.

–        A study by PwC found that the Eastern District of Texas affirmance rate is only slightly below the national average for all districts.

–        The VENUE Act does not re-establish a “uniform” litigation system for patent rights by requiring substantial ties to the forum. “Instead, the Act thwarts the well-established rule that plaintiffs can bring suit in any jurisdiction in which a corporate defendant has committed substantial violations of the law.”

–        The VENUE Act would raise costs for many patent owners by requiring them to litigate the same patent against multiple defendants in multiple jurisdictions, increasing patent litigation overall.

–        The VENUE Act encourages the manipulation of well-settled venue rules across all areas of law by the self-serving efforts of large corporate defendants who seek to insulate themselves from the consequences of violating the law.

The letter concludes: “We urge you to exercise caution before enacting further sweeping changes to our patent system that would primarily benefit large infringers to the detriment of these innovators and, ultimately, our innovation economy.”

As previously reported on this blog, a letter signed by 45 professors was sent to the Senate Judiciary Committee in July supporting patent venue reform to address forum shopping. The professors noted that the Eastern District of Texas is home to nearly half of all US district court patent cases, with one judge handling two-thirds of the patent cases in the district.

"It is imperative that Congress address patent venue reform to return basic fairness, rationality, and balance to patent law," said that letter. "Specifically, venue reform that treats plaintiffs and defendants equally by requiring a substantive connection to the venue on the part of at least one party is critical to ensure fairness and uniformity in patent law."


Top companies for patent practitioners

Last week this blog noted Patexia had ranked the leading law firms for patent practitioners. The IP network has been back at it again, this time ranking companies by number of US patent practitioners.

IBM tops the list, with 154 registered practitioners.

“If IBM had been a law firm (referencing our list last week), it would have been the seventh-largest US law firm in terms of number of registered patent practitioners,” noted Patexia’s Pedram Sameni.

Patexia patent companies chart
Source: Patexia


The top 25 IP-intensive companies includes only two non-US companies (Siemens and GlaxoSmithKline). The two youngest companies in the list are Google (13th) and Intellectual Ventures (23rd).

The top 25 employ 1,721 registered US patent attorneys and patent agents, or 4% of those registered to practice before the USPTO.


Political rallies and copyright

Presidential campaigns always stir up questions about copyright because of politicians’ proclivity for playing songs by artists that disagree with their viewpoints. So it was with the recent Republican National Convention in Cleveland, with bands such as The Turtles, the Rolling Stones and Queen objecting to their songs being used.

The Hollywood Reporter ran a good overview of the issues at play in whether artists have any legal recourse when politicians they do not like use their music.

The answer for most is there is nothing they can do, as Neil Young discovered last year when he objected to Donald Trump using his “Rockin’ In the Free World” during his presidential bid announcement. Trump claims he had obtained a blanket licence from ASCAP, which covers the public performance of a song’s composition. Young later conceded: “He actually got a license to use it. I mean, he said he did and I believe him. So I got nothing against him. You know, once the music goes out, everybody can use it for anything."

The Hollywood Reporter’s Eriq Gardner explained: “To sum up where we're at: An ASCAP license covers the public performance of songwriting, but not the sound recording. A sound recording authored before 1972 like ‘You Can't Always Get What You Want’ might require special permission to be performed in public. Whomever owns that song – whether it's the Rolling Stones or their record label – could bring a lawsuit asserting misappropriation.”

However, despite The Turtles “Happy Together” and The Beatle’s “Here Come the Sun” being performed at the convention, these artists would not have a good lawsuit despite being pre-1972 songs. This is because those songs were performed by the house band as opposed to the original recordings being played.

“In other words, the Republicans performed the compositions – again, the ASCAP license deals with that – and in doing so, they avoided facing the type of very specific lawsuit available to address public performance of pre-1972 sound recordings,” wrote Gardner. “Had we heard the version where George Harrison sings, it would be a different story.”

Turtles’ singer Howard Kaylan found this out during the convention, when he complained about the use of his song. He tweeted: "I was annoyed. And I did call lawyers. There is no legal recourse for covers. Not like Mrs. Trump outright theft."



IP kills off “Stephen Colbert”

US late night television host Stephen Colbert made an unusual announcement that the character “Stephen Colbert” was finished and that he was launching a new TV persona called … Stephen Colbert, reports The New York Times.  

After years on Comedy Central’s Colbert Report playing a caricature of himself as an egotistical conservative host, Colbert took over on CBS’s The Late Show as himself. However, he revived his previous persona last week (as well as a segment called “The Word”) when covering the Democratic National Convention. This, Colbert explained, prompted “corporate lawyers” to get in contact.

“Because – and this is true – immediately after that show, CBS’s top lawyer was contacted by the top lawyer from another company to say that the character Stephen Colbert is their intellectual property,” he said. Colbert noted that this was “surprising, ’cause I never considered that guy much of an intellectual”.

Colbert said the character would never be seen again.  “I cannot reasonably argue I own my face or name,” he commented.

However, fans of his political satire need not fear. He immediately went on to introduce a new alter ego with the same name, whom he described as the “identical twin cousin” of the previous one.

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RT @MarquesIP: At #marques17 Dimitris Botis of @EU_IPO & Simon Malynicz of @3NewSquare discuss the EUTM changes coming on October 1 #EUIPO0…

Sep 21 2017 08:53 ·  reply ·  retweet ·  favourite
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RT @pmdm: Motion marks at EUIPO may now feature sound. #marques17 https://t.co/1s4xpYpZCA

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Congratulations to Mark and Michael! https://t.co/kOzP3XfAFU

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