Patients who were filmed as part of a reality show taking place in a hospital, have been certified as a class to bring a right of privacy suit against the producers of the TV show.  Via NY Lawyer.

My son told me that SpongeBob had been cancelled because a child had drowned on a family boat trip when he leapt overboard because he thought he saw SpongeBob.  Furthermore, this had to be true, because Armand, Max, Matt B., Jake S., Matt W. and Jake N. had all heard this.

So we Googled ‘SpongeBob drowning’ and found this rebuttal.

Felix Salmon wonders about the true dollar value of counterfeits.

Boing Boing wonders about iTune sales as a percentage of songs actually loaded onto iPods.

Copyfight wonders about the BSA’s software piracy numbers.

Petition for cert in Contessa Premium Foods v. Berdex Seafood, via Scotus Blog.

Questions presented: (1) Whether willfulness is a prerequisite for an award of profits for violations of Section 43(a) of the Lanham Act; (2) whether the case should be remanded for reconsideration after Grokster is decided.

UPDATE: A reader alerts me to the fact that cert was denied on this issue two years ago in a Fifth Circuit case, Quick Technologies, Inc. v. Sage Group plc.

The latest issue of the Freshfields International IT and new media update is available online. Among the decisions discussed is that of the higher regional court of Colgne, Germany, that held that a n auction provider that is aware of a trademark infringement occurring on its side must do whatever is technically feasible to prevent future infringements by whatever technical means necessary.

In March 2003 I wondered here whether print media (in my hypo, the New York Times), could utilize a ‘shrink-wrap’ license, that is to say whether it could print licensing terms on that nice blue bag it comes in, or perhaps on its front page, by which it attempted to extend the statutory protection of its contents (perhaps claiming protection in its various factual compilations).

Well, now the Librarian and Information Science News reports that some reference books are now being sold in shrink wraps.  Via CopyFight.

If you wanted to look into this issue, one place to start would be to Google Pro CD, Inc. v. Zeidenberg.

Calcanis Blog on a software package that suggests that third party RSS feeds are out there waiting for you to put to your own commercial use.  Ernie the Attorney weighs in.  What do you guys think?

Dorling Kindersley published “Grateful Dead: The Illustrated Trip.”  It had asked the Bill Graham Archives permission to reproduce seven posters promoting Dead concerts.  The parties couldn’t agree on a licensing fee and the book was published containing seven ‘thumbnail’ images of the posters.  The Archives sued.

The Southern District of NY conducted the traditional four part fair use test.  Defendant’s use was presumptively fair as it was biography.  The original work was a published creative work, favoring plaintiff.  The amount and substantiality (or lack thereof as this was a thumbnail, favored, defendant.

As to the fourth factor, “the effect of the use upon the potential market for, or value of, the copyrighted work,’ when reading the decision I was struck by the potential circularity of a finding that a use isn’t fair because it has a negative effect of the potential market.   As noted by the court, a plaintiff could create a business licensing parodies, and then argue that unlicensed parodies have a negative effect on that market.

I emailed noted copyright lawyer and deadhead Craig Mende, who responds:

“There has always been a danger of circularity in applying the fourth statutory factor.  As Judge Daniels notes, any uncompensated use of a copyrighted work involves the loss of “potential licensees,” and “if this were the determinitive factor, it would render the analysis for the fourth factor meaningless.”  To address this, the Court cited a line of cases holding that only potential licensing revenues for “traditional, reasonable or likely to be developed” markets should be considered, and imported a key first factor concept — whether the use is “transformative” — to make this determination:  “Whether a copyright holder is expected to exploit a market depends substantially on whether the use is transformative.”
 
I think it’s helpful that the Court is trying to give contours to what types of lost licensing opportunities count as harm under the fourth factor.  However, looking to whether the use is “transformative” may be the wrong inquiry, and probably proves too much.  For instance, turning a 60 page play into a 2 and a half hour feature movie is highly transformative, but that doesn’t mean that making a movie is a fair use of the play, or that it isn’t taking away from the copyright owner’s “traditional” market for the work.”

So the court found that ‘the transformative nature of the use is outside the ambit of lost licensing opportunities’ and this there was no negative effect on plaintiff’s market. Fair use.

Bill Graham Archives v. Dorling Kindersley, 03 CV 9307 (SDNY  May 11, 2005) (text of decision via Silicon Valley Media Law Blog).

Bill Graham Fillmore posters available here.