JOLT Digest

First Circuit Holds That Artists Have Moral Rights In Unfinished Works
By Debbie Rosenbaum – Edited by Alissa Del Riego

Massachusetts Museum of Contemporary Art Foundation v. Büchel, No. 08-2199 (1st Cir. Jan. 27, 2010)
Slip Opinion

On January 27, the First Circuit affirmed in part, vacated in part, and remanded for further proceedings the district court’s grant of summary judgment for the Museum of Contemporary Art, holding that artists have moral rights in unfinished artworks.

The First Circuit decided a number of complex issues related to the Visual Artists Rights Act (“VARA”), holding that VARA’s protection of an artist’s moral rights extends to unfinished creations that are “works of art” within the meaning of the Copyright Act.  In so holding, the court reasoned that “moral rights protect the personality and creative energy that an artist contributes to his or her work,” and “[t]hat convergence between artist and artwork does not await the final brushstroke or the placement of the last element in a complex installation.”

The court also ruled that the district judge in the lower court improperly granted the Museum of Contemporary Art summary judgment for one of Büchel’s integrity claims under VARA and his Copyright Act claim finding that there were “material disputes of fact” that should be decided by a jury about whether the museum distorted Mr. Büchel’s installation by showing it to several people after making changes in it without his approval.  However, the First Circuit ruled that Büchel’s right-of-attribution claim was moot because VARA provides only injunctive relief to protect the right of attribution and his installation no longer exists.

The New York Times and the Copyright Litigation Blog both provide an overview of the case.  The Boston Globe provides a good news story that includes the facts going back to the initial dispute. (more…)

First Circuit Explains Judgment Against File-Sharer Tannenbaum
By Eric Engle  – Edited by Miriam Weiler

Sony BMG Music Entertainment et al. v. Tannenbaum, Case No. 07cv11446-NG (Dist. Mass., Dec. 7, 2009)
Memorandum and Order

The U.S. District Court for the District of Massachusetts elaborated on its July 27 summary judgment against Joel Tannenbaum, holding that file sharing for personal use was not presumptively fair under the Fair Use doctrine.  In so holding, the court suggested that Tannenbaum could have escaped liability with a more tailored fair use argument, but his expansive argument failed.

The Copyrights and Campaigns Blog provides an overview of the case and its commentary. Ars Technica criticizes the decision as being badly litigated and missing a chance to extend the fair use doctrine to encompass sampling music prior to purchase or space-shifting to store purchased music more efficiently. Wired.com defends Professor Nesson’s litigation strategy.

(more…)

Massive Patent Verdict Overturned
By Jia Ryu – Edited by Stephanie Young

Uniloc v. Microsoft, No. 03-440 S (D. R.I. Sept. 29, 2009)
Opinion

The United States District Court for the District of Rhode Island vacated one of the largest patent verdicts in history, in which a jury held that Microsoft’s “Product Activation System” (“PA”) infringed on Uniloc’s patented “System for Software Registration” (the “‘216 patent”). In holding that Microsoft did not infringe as a matter of law, the District Court found that Uniloc had not shown the presence of each element of the patent claim or its substantial equivalent in the accused device as required by Lemelson v. United States, 752 F.2d 1538 (Fed. Cir. 1985). The Court, while noting that the jury’s finding deserved deference, expressed its “firm belief” that the jury failed to grasp the complex issues in the case and lacked a legally sufficient basis for the finding.

The Microsoft Blog provides an overview of the case. Betanews provides a thorough analysis of the main legal issues. Evidence Prof Blog provides a look at the admissibility of expert damages testimony.  Current Events in IP Law questions the jurors’ ability to understand the issues. (more…)

First Circuit Bans Webcast in Trial Court

By Debbie Rosenbaum* – Edited by Chris Kulawik
In Re: Sony BMG Music Entertainment Et Al., April 16, 2009, No. 09-1090
Opinion

On Thursday, April 16, The United States Court of Appeals for the First Circuit in Boston, MA overturned a motion granted  by the district court which would have permitted the oral arguments in the case of Joel Tenenbaum vs. the Record Industry Association of America to be broadcast live over the Internet.

In a unanimous opinion by the First Circuit Court of Appeals authored by Judge Bruce Selya, the court ruled that the District of Massachusetts Local Rules, as well as policy statements by the First Circuit Judicial Council, and the United States Judicial Conference, all pointed toward one conclusion: no webcast would be permitted. The decision rested on two premises: 1) Judge Nancy Gertner lacked the authority to permit Internet broadcasts from her courtroom; and 2) the Judicial Council’s 1996 anti-camera resolution banned the use of recording devices in federal courtrooms unless they are used to preserve trial evidence. However, in so holding, the court noted that they were “reluctant to interfere with a district judge’s interpretation of a rule of her court, especially one that involves courtroom management.”

As explained by Copyrights & Campaigns, Judge Kermit Lipez filed a brief concurrence, agreeing with Judge Selya’s conclusion that the rules preclude the webcast, but arguing that there is no good policy reason to disallow it. Copyrights & Campaigns also argues, as does Recording Industry v. the People, that it is ironic that the court of appeals posted an audio recording of the oral argument on its website.

Ray Beckerman has consolidated all the legal documents associated with this portion of the case. (more…)

First Circuit Lifts Trademark Injunction to Make Way for Super Duck
By Miriam Weiler — Edited by Evie Breithaupt

Boston Duck Tours v. Super Duck Tours
First Circuit, June 18th, 2008, Nos. 07-2078, 07-2246
Slip Opinion

On June 18, the First Circuit lifted a preliminary injunction granted by the District Court of Massachusetts, which had enjoined Super Duck Tours, LLC (“Super Duck”) from using the phrase “duck tours” in its trade name and the cartoon of a duck in its logo. On July 2, 2007, Boston Duck Tours, LP (“Boston Duck”) filed a complaint in the district court alleging federal trademark infringement and unfair competition and seeking a preliminary injunction against Super Duck. The district court granted the injunction and Super Duck appealed.

The First Circuit held that the lower court clearly erred in concluding that Boston Duck was likely to succeed on the merits of its trademark infringement, by over-estimating the likelihood that use of the phrase and image would cause consumer confusion.

The court of appeals did not address the district court’s ruling regarding Super Duck’s purchase of the key word phrase “Boston duck tours” on Google. “Sponsored linking” or “keyword advertising” allows the purchaser of a keyword to link his or her website to the search engine’s results page with a highlighted link at the top of the page.

The district court found that Super Duck’s sponsored linking did not violate the injunction. It found that sponsored linking, however, does constitute “use” under the Lanham Act, which states that “a mark shall be deemed to be in use in commerce. . . (2) on services when it is used or displayed in the sale or advertising of services.” 15 U. S. C. §1127. The district court reasoned that the plain language of the statute and the majority of courts have considered sponsored linking “use.” (more…)