9th Circuit Intellectual Property Law News - U.S. Ninth Circuit
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It's been a bad week for free speech, with censured shirts and prior restraints on speech.

We were all ready to lambast the Ninth Circuit's opinion in Dariano v. Morgan Hill, where the court allowed a school district to ban t-shirts with the American Flag on them (for safety!). Then, the court topped itself, with a idiotic takedown order of the infamous and also idiotic "Innocence of Muslims" video on YouTube, due to an actress's copyright claim over her fifteen seconds of footage.

It gets worse: the court also made their order under seal, with a gag order in place. Once, twice, three times a censor.

Quentin Tarantino wrote a script. He gave the script, without any security precautions (such as watermarking or armed guards) to six people in Hollywood. One of the six people leaked it. Shocking.

It made it onto the Internet. Again, shocking. Tarantino complained to Deadline Hollywood about the leak.

At this point, the story became newsworthy. Even without his statements to Deadline Hollywood, his next movie would be newsworthy, but doubly so when he complains about it and tells a media outlet that he's considering postponing or cancelling the movie due to the leak.

At this point, you want to read the script. So do I. When the script popped up online, Gawker's Defamer blog, which covers the underbelly of the industry (including Tarantino's foot fetish), published a story about it, including a link.

Legend has it that the Persians invented the hookah many centuries ago. In that time, the design has changed little. The base holds water, the stem leads to a tobacco bowl, where tobacco and coals create smoke. A hose, connected near the base, uses suction to pull smoke from the tobacco, through the water, and back through the hose, where it is inhaled.

Hookahs come in all shapes and sizes, from mini-hookahs (which look like massively oversized smokers' pipes) to insanely elaborate works of art.

Inhale, Inc.'s copyrighted hookah was none of these things. The company copyrighted its base in 2011, which looks like every other base from the last few hundred years, except it had skull decorations. Starbuzz, a competing company, also makes hookahs, which unsurprisingly, have the same shaped vase, though theirs lacked skulls. Inhale sued Starbuzz one month after obtaining their copyright. And they lost. And they appealed.

And now, they just got smoked.

The Beastie Boys are rightfully irked. Never, in the history of their group, have they ever agreed to allow the use of their music in advertising. In fact, their late member, Adam Yauch, stated in his will that none of the group's music ever should be.

And yet, we have the GoldiBlox "Girls" parody, a delightful, empowering tune that counters the misogynistic tone of the original. ("Girls - to do the dishes, Girls - to clean up my room, Girls - to do the laundry ...")

It goes against Yaunch's will, as it is a commercial for girls' educational toys. Yet, it's almost certainly fair use. And in the real twist, the Beastie Boys didn't initiate the court case -- the toymaker did, reports The Hollywood Reporter.

Alex and Eddies' band is hot over more then just their teacher. They've brought suit right now against Alex's ex wife for violation of the band's trademark by using their name in her construction and interior design business.

Except, it's her name too. Can someone really be sued for violating a trademark when that trademark is her own last name?

It was a defense that does not exist anywhere in copyright statutes. It also inspired a passionately dissenting concurrence (hates the law, bound to apply it). Now, the Ninth Circuit's invocation of "laches" as a defense to ongoing copyright infringement has attracted the review of the U.S. Supreme Court.

Other commentators, who claim that the Ninth Circuit is Hollywood-biased, hope that a possible reversal will stem the tide of studio-friendly holdings by the court once dubbed by Chief Judge Alex Kozinski as "court of appeals for the Hollywood circuit," reports Variety.

Looks like Electronic Arts is throwing out the red challenge flag. Last month, in a pair of mildly confusing matchups, a panel of the Ninth Circuit tossed NFL Hall-of-Famer Jim Brown's Lanham Act claim, finding that EA's First Amendment rights trumped his right of publicity. In a simultaneously released opinion, they held that former college QB Dustin Keller's right of publicity trumped EA's rights.

The rulings were a bit incongruous, but relied on two different tests, the Rogers test and the "transformative use" test, as well as the difference between state and federal law. In a factually identical case to Keller, earlier this year, the Third Circuit also held that a college player's rights trumped EA's creative expression. Now, EA is seeking a hold on the Ninth Circuit's remand to the district court while it appeals both college cases to the Supreme Court, reports USA Today.

Today, the Ninth Circuit didn't portray Green Day as "American Idiot[s];" instead, they affirmed a lower court's ruling in their favor, reports Reuters.

At issue was Green Day's use of Dereck Seltzer's street art, used in a four-minute video backdrop to one song in Green Day's 2009-10 21st Century Breakdown Tour. Seltzer claimed copyright infringement and violations of the Lanham Act. The district court granted Green Day's motion for summary judgment and awarded attorney's fees.

The Ninth Circuit affirmed the grant of summary judgment on the copyright and Lanham Act claims, but vacated the award of attorney's fees.

In a pair of long-awaited decisions that are sure to create confusion and inspire much more litigation, the Ninth Circuit finally decided two football videogame likeness disputes with two separate and seemingly-conflicting opinions.

Jim Brown dominated the NFL for the Cleveland Browns in the 1960s. His likeness has appeared in many recent editions of the Madden NFL series as a historical, Hall of Fame, or "All-Madden" player, though Electronic Arts, the publisher of Madden, has taken some steps (such as changing the jersey number) to differentiate the otherwise similar avatar.

Sam Keller, more recently, played quarterback for the NCAA Division-I Arizona State Sun Devils. His likeness, which, according to the court, mimicked his height, weight, facial features, hair color and style, home state, playing style, school year, skin tone, throwing arm, uniform number and even his visor preference, appears in recent versions of Electronic Arts' NCAA Football.

Steven Kimble must've been quite the Spider-Man fan. In 1990, he invented a toy that mimicked the superhero's ability to shoot spider-webs from his wrists, by attaching a can of foam string to a string, which could be pulled by the user's hand. (See below). He first patented the idea, then presented it to Marvel, which promised to provide royalties if they decided to go through with the idea.

They did, and they didn't. Marvel has been producing variants of the toy since the 1990s, yet refused to pay Kimble his due. After years of litigation, a patent defeat for Kimble in summary judgment, and a jury verdict on breach of contract claims in the inventor's favor, the parties finally settled matters in 2001. All appeals would be dropped, court decisions vacated, and Marvel would purchase the patent -- No. 5,072,856 -- for a lump sum plus annual royalties in perpetuity.