9th Circuit Intellectual Property Law News - U.S. Ninth Circuit
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We've got a twin pack of updates for you on this midsummer Monday afternoon, both involving preliminary injunctions, video content, and non-traditional distribution mediums.

In one case, which pits a major television network against an alternative video distribution medium (it's almost Aereo part II), the panel declined to issue a preliminary injunction. In the other, we have a bit of backtracking (but not enough) by the panel in an amended opinion in a dangerous precedential case that imposed prior restraint on speech on the basis of a questionable copyright claim.

The Ninth Circuit can add another notch to its "Supreme Court reversal belt."

On Monday, the Court reversed a Ninth Circuit judgment dismissing a copyright heir's claim on the basis of laches. Finding the court's judgment in error, the Supreme Court reversed and remanded.

A few weeks ago, we got a crash course in recusals and unrecusals, when Supreme Court Justice Samuel Alito sold stocks and "unrecused" from two cases being before the high court.

While it's common sense that Federal judges would be required to self-recuse if their financial holdings lead to a conflict of interest, the unrecusal tax break, for when judges sell stock to remove a conflict, was a fun surprise. And as you might expect, courts have adopted conflict screening systems to ensure that these mandated recusals actually happen.

Even with a system in place, however, a few conflicts were overlooked.

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.