After our discussion on Apple and Amazon in class, I was curious to see how to case would unfold. About two weeks ago, this article came out explaining Amazon’s approach to it, which offers some insightful information on the battle of the app stores.

Since 2008, Apple has been trying to get “app store” trademarked and was only able to succeed in 2010. Microsoft then filed an objection in July 2010 on the grounds that the term was too generic and the trademark should be denied. Apple filed a suit last month against Amazon, stating that their Android App store was a clear infringement of Apple’s trademark. Apple claimed that Amazon’s store would cause confusion to consumers and that Amazon was using the term improperly.

In Amazon’s response, the company acknowledges that it never received authorization from Apple to begin using the term, but claimed that authorization from Apple isn’t necessary because the term is generic. The company denies that it violated Apple’s trademarks or that it’s goal was to confuse Apple’s customers. Amazon also pointed out Steve Jobs’ comments during a conference when he appeared to use the term “app store” in a generic way. The full quote was this:

“So there will be at least four app stores on Android, which customers must search among to find the app they want and developers will need to work with to distribute their apps and get paid. This is going to be a mess for both users and developers. Contrast this with Apple’s integrated App Store, which offers users the easiest-to-use largest app store in the world, preloaded on every iPhone.“

Amazon claimed the line is bold was a clear use of the term “app store” in a generic sense. Amazon filed its response to Apple two weeks ago, asking the judge to toss the suit because Amazon is using the term lawfully and is not violating Apple’s copyright.

It would be interesting to see this case go to court. Would Apple’s power and monopolistic ways beat out Amazon, or will Apple’s control of “app store” be taken away? I personally think the term is too generic to trademark; it would be like Whole Foods trade marking the term “grocery store”. What do you think? Will Apple continue to reign supreme or will Amazon be able to use the term “app store” as well?

This is a very old article, dating all the way back to 1996, but I recently read it for my final paper on ASCAP and figured I would bring it up. In 1996, ASCAP threatened to sue numerous Girl Scout and Boy Scout day camps if they continued to sing ASCAP’s copyrighted works without a license. “They buy paper, twine and glue for their crafts – they can pay for the music, too,” says John Lo Frumento, ASCAP’s chief operating officer. If offenders keep singing without paying, he says, we will sue them if necessary.” Popular camp songs such as the Macarena, Gold Bless America, and Puff the Magic Dragon are licensed with ASCAP and therefore could not be sung or played without a license. A camp such as the one in the article, Diablo Day Camp, which has 241 girl scouts, would have had to pay ASCAP $591 that year. It doesn’t seem like a lot, but at the time Diablo, like many camps, were low on funds, therefore deciding to scrap all ASCAP copyrighted songs. “Is Row Row Row Your Boat’ copyrighted?” asks Holly Foster, a 14-year-old Elf with a turquoise happy face on her cheek. “Row Row Row Your Boat” might float, the directors decide, but “Puff the Magic Dragon” is out. “How about Ring Around the Rosie’?” another Elf asks. The directors veto it.

After much uproar from the public for being to harsh on the camps, which cater to young children, ASCAP changed its tune stating that it never intended to go after small “mom and pop” run camps but rather those that are formatted like a resort, “the sort that bring in bands for square dances, have music by the pool … and are like sending your kid to a resort.” Does this make it more of a money issue rather than a copyright issue?

Is it fair to force camps to pay for the songs they use? Some people consider it education purposes, and many of these kids are too young to even understand what copyright infringement is.

“These claims are all about competing companies wanting to get a piece of the [smartphone revenue] pie, although I do see some of the claims that are eye-opening, to say the least,” remarked Mitchell Stein, an intellectual property litigator at Silver Freedman in Los Angeles.

On a related note to the recent Microsoft case, I have often wondered how different cell phone providers claim that the other company stole related features. In this new age of smartphones, multi-functional cell phones naturally provide similar programs—video, camera, calendar, texting, chats etc.

This ongoing litigation among companies is rather intense and unrelenting. In fact, a recent article actually calls the smartphone patent fight World War III. Just to hone in on one of these disputes, Apple and Samsung have engaged in over 40 lawsuits over the past 18 months. However, if these companies ultimately will end the fight with a settlement, then there seems to be little inherent value in battling the case at all.  According to the article, Apple was the first to the smartphone market with the iPhone, thus has a greater claim to questioning similar models.

Apple has accused Samsung of various patent infringements, including physical resemblance and packaging of the Samsung S i9000 to the iPhone. In addition, Apple claims patents to other features, such as the iOS instant messaging interface, the “bounce back” effect from scrolling down too far on a window and other small features that users ordinarily wouldn’t have a second thought about.

Do you think that it’s actually possible to make a claim on a specific cell phone feature? How can a company actually prove this?

Caption to the image above on “Who’s Suing Who”: Nokia suing Apple over Hardware, Apple consequently suing Nokia over Software; Apple suing HTC over Hardware, HTC then suing Apple over Power Management; Microsoft suing Motorola and Oracle suing Google for Android’s Java similarities (Source: The Economist, October 2010)

The Supreme Court recently heard a case regarding Microsoft’s patent infringement on a Canadian software company called i4i Limited Partnership. The Canadian company claims that Microsoft has infringed on its method for editing documents. Although the Supreme Court justices seemed to parse through the meaning of “clear and convincing evidence” to prove/disprove the patent infringement, this case is important due to the questions it raises regarding patent litigation in general.

The Supreme Court has mentioned that juries might actually have the opportunity to decide such cases in the future. How would this work? A New York Times article discusses the possible implications of this change in patent litigation. It might be possible that juries won’t inherently question the validity of a patent. In other words, juries might be more inclined to accept the patent than to question it, which means that laymen groups could be making crucial decisions about the future of companies and businesses and possibly making the wrong decision by enforcing “dubious patents.”

Essentially, the jury system in patent law has not yet been implemented because the Court suggests that experts should decide who is awarded a patent and who is not. In addition to this, the article notes that the daily business of the U.S. Patent Office would not change—patent applications would still be reviewed for a few hours and then passed along if not obviously infringing on original work.

This article seems rather unsettling to me. Although it is understandable that we should leave patent decisions to experts, shouldn’t there be another mechanism to hold these individuals accountable? Naturally, those who work at the Patent Office have an incentive to approve, rather than deny, a patent application, simply to move along and get through other incoming applications. Shouldn’t non-governmental employees or lay juries check to see if these patents should have been issued to begin with? Given that patents can reap extraordinary economic benefits to an individual or business, wouldn’t it make sense to have another party ensure that the patent granted is on a truly original idea? (I suppose this just brings up the circular question as to what is the definition of original).

Do you think lay juries would benefit or hinder the current patent system?

I know that this subject was posted on previously, but 1) I had already written my piece on it and 2) I think I share some new opinions on the subject matter.

If copyright was created with the hopes that protection would inspire, stimulate, and encourage additional artistic creation, why does this supplementary creation more often than not end up in court?

It seems that everyone is just trying to claim his or her own piece of the creative pie these days. Take the most recent case against Warner Brothers and their summer 2011 blockbuster The Hangover: Part 2. After grossing over 270 million domestically, Warner Brothers was smart to capitalize on the success of this comedy

Award winning tattoo artist, S. Victor Whitmill is requesting a Missouri federal court for an injunction to halt the release of The Hangover: Part 2. Whitmill was the artist that gave Mike Tyson his notorious facial tattoo. Whitmill claims that Warner Brothers “copied Mr. Whitmill’s Original Tattoo and placed it on the face of another actor…[which] constitutes copyright infringement.”

The tattoo is clearly copyrighted, as Tyson signed the rights to the design over to Whitmill stating that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics.” Taken literally, everytime Tyson was photographed, Whitmill should have been compensated. And although the tattoo may be one of the most notable ink designs in the nation a number of factors will diminish Whitmill’s claim of malicious, intended copyright.

1. First and foremost the use of the tattoo on Ed Helms face can easily be considered a parody. When the use is against someone of notable fame, the parody argument becomes much more legitimate.  This makes additional sense, especially since Tyson made a lengthy cameo in the first film.
2. Secondly, Warner Brother’s has a strong case to claim Faire Use. The tattoo image appears within a greater creation. The purpose and character of the tattoo is not for commercial use. While the overall film is, I doubt that the ink on the side of Helms face is an integral piece of the story. While the entire tattoo is used, the designs are not exactly the same. The vague design of the tattoo allows it to fall into the vein of “tribal tattoos,” which inherently share similar elements and a style cannot be copyrighted. It is nearly impossible for Helms facial tattoo in the movie to affect the market value of Tyson’s original ink. The design was essentially a one time, one sale, commissioned work. Unless, the exposed image creates a pop culture wave of Tyson facial tattoos on the American public, there isn’t even a viable market for such tattoos.

My guess would be that Warner Brother’s settles the lawsuit in order to ensure that their film is released on time. This small copyright infringement claim is much less of a headache then postponing the release of a movie.

http://www.ipbrief.net/2011/05/01/iron-mike’s-tattoo-may-be-giving-warner-brothers-entertainment-a-hangover/

Earlier in March, Manhattan federal court judge Deborah Batts ruled against artist Richard Prince and the Gagosian Gallery in a copyright infringement lawsuit brought on by French photographer Patrick Cariou. Cariou claimed that Prince, a notable appropriation artist, had used his photos unlawfully.

Appropriation in the art world is “the use of borrowed elements in the creation of a new work.” Intrinsic to process of appropriation is that the new work sets whatever it borrows from the original in a fresh context. Although an extremely popular artistic form, its protection under the statute of faire use is often questionable.

Cariou alleged that Prince borrowed images from his book “Yes, Rasta” a collection of Rastafarians in Jamaica and appropriated them into a series of artworks titled “Canal Zone.” A number of the artworks which were composed of Cariou’s images were featured in a show at the Gagosian gallery, with sticker prices in the multi millions. Cariou had not granted permission to Prince for reuse of the photographs and neither was he compensated. In total, Prince appropriated approximately 41 images from Cariou’s book, some barely altered.

Defendants Prince and Gagosian Gallery claimed that their use of Cariou’s copyrighted photographs were “transformative” and were thus protected under a fair use claim. Judge Batts found that Prince’s use of the artwork was not Fair Use. For a work to be considered transformative it must add some sort of value through this transformation traditionally by commenting on the original image or expression. Judge Batts drew legal precedent from the case Rogers v. Koons which discussed the significance of what makes a work transformative stating, “if an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.”

Let’s briefly discuss why Prince’s use cannot be considered under the faire use argument.
1. Purpose and Character

Prince’s work must be considered a “derivative work.” There is no precedent to dictate what is and isn’t transformative, we only have the preamble to 107 to rely on which encourages that all of the secondary works focus on and criticize the original works or focus on them in a historical context. Prince’s work “are transformative only to the extent that they comment on the photos; to the extent they merely recast, transform, or adapt the photos, Prince’s paintings are instead infringing derivative works.” Commercially, The Gagosian Gallery sold 8 of Prince’s “Canal Zone” paintings for a total amount of over 10 million dollars; 60% to Prince, 40% to the Gallery—that is, the works were very successful commercially.

2. Nature of the Copyrighted Work

Cariou’s photos were found by the Court to be “highly original and creative artistic works and that they constitute creative expression for public dissemination and thus fall within the core of the copyright’s protective purposes.”

3. Amount and Substantiality of the Portion Used

In the majority of Prince’s paintings he used complete images of Cariou’s. Prince appropriated the “central figures” of Cariou’s photos which were of great “quality and importance” to the originals.

4. Effect on Potential Market or Value of Copyrighted Work

The Defendants claimed that Cariou had not marketed his photos aggressively to any degree, especially when compared to the extent to which Prince had marketed his. However we know that the Second Circuit asserted that the potential market must be examined even if the “author has disavowed any intention to publish them during his lifetime” because the author “has the right to change his mind.”

The Court ordered that the Defendants impound and destroy of, as Plaintiff determines, all infringing derivatives and any evidence or remnants of the photos that the Defendants have in their possession. The Defendants were also required to notify the owners of the paintings that the paintings infringe the copyright of Cariou’s photographs and that the purchase of them was not lawfully made and therefore they cannot be lawfully displayed.

http://www.aphotoeditor.com/2011/03/19/richard-prince-loses-fair-use-argument/

Cariou/Prince

Cascada has just released a brand new song entitled “San Francisco,” and the song is more ripped-off of Katy Perry’s “California Gurls” than “Born This Way” is off of “Express Yourself.”  I mean, Cascada did not have the decency to even put the song in a different state or a different coast.  I think that the comparison is total infringement.  Not only does “San Francisco” have the exact same tempo and chord progression, but it also starts with and is comprised of the same exact instruments and club beat.  Listen:

Cascada’s “San Francisco”

Katy Perry’s “California Gurls”

The similarities are uncanny.  I wonder if Cascada put any thought into the fact that the songs are, to say the least, the same.  Artists these days seem to be getting lazy when creating “original” music.  It seems to me that infringement and copyright cases are exploding in the entertainment industry, especially in the record companies, but I think laziness can only go so far.  I mean, c’mon.

The infringement is obvious.  Am I right?  I am curious to see how Perry’s managers and producers will react to this.  There is obviously a case in this, or maybe Katy Perry will brush it off like Madonna.  What do you think?  Is there similarities?  Will Katy Perry sue?  What will be the outcome of this situation.