Perhaps the Second Circuit is already in a pre-Thanksgiving, turkey tryptophan-induced food coma, but so far it's been a not-so busy week for the court as far as precedential decisions. But, there is some important news coming out of the circuit that is worth noting.
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There were just too many interesting things happening in the Second Circuit last week so here's a roundup of some of our favorites.
When you stream television content on your mobile devices, do you consider those private, or public, performances insofar as copyright law is concerned? That's the basic question television broadcasters are petitioning the Supreme Court to decide.
Whether you're into zombies, monsters or superheroes, the news coming out of the Second Circuit reads more like updates from Comic Con than a Court of Appeals. In just a matter of days, the Second Circuit decided a case against B-Movie impresario Troma, and suspended trial deadlines pending a settlement in a Marvel case.
Marvel Comics has experienced a renaissance of sorts over the last few years, with comic book characters hitting the big screen and raking in millions. So who can blame the heirs of artist Jack Kirby, the man who drew "The Fantastic Four," "The Incredible Hulk," "The X-Men" and "Spider-Man," to want in on the action?
Well, you can't blame them for trying, but the Second Circuit didn't think their claims had any merit.
From 1958 to 1963, Jack Kirby was a freelance artist, with the vast majority of his works during this time published by Marvel. He worked closely with Stanley Lieber (aka Stan Lee) who assigned and oversaw his work. Kirby passed away in 1994, and in 2009, his four children served Marvel with copyright termination notices. Marvel countered with a suit seeking a declaration that the Kirby heirs didn't have any copyright rights to terminate.
Ben & Jerry's has long been known for its playful ice cream flavor names. Names like Cherry Garcia, Phish Food and Late Night Snack all pay homage to pop culture (Jerry Garcia, the band Phish, and Jimmy Fallon, respectively). They've even had some racy names like Karamel Sutra, and who can forget Schweddy Balls?
But, when the tables were turned on Ben & Jerry's, they didn't like it one bit.
Today was another bad day for the Author's Guild, the collective of copyright holders who are suing both the HathiTrust Digital Library and Google Books over their online mega-catalogs. Both services scan the text of books, in-copyright or out-of-copyright, and stores that information online, in a massive searchable database. A user's query brings up an excerpt of the book, along with page number, title, and author.
Like we said, because it only provides excerpts, it's essentially a mega-catalog. And while the Author's Guild's lawsuit against the HathiTrust was defeated in the name of fair use in the lower court, and may suffer the same fate on appeal, their lawsuit against Google Books remained, and thanks to a lower court's ruling, had even certified a class.
Consider that class de-certified, then.
Imagine e-book utopia. Billions of books, nearly every significant work ever written, available electronically through an electronic library. Want to flip through some Faulkner? Click. Peruse Peruvian history? Click. Find the answer to the meaning of life and everything? It’s 42, and you can find that with a click or two too.
The HathiTrust is not that utopia, nor is Google Books. They could be, but the restrictions placed upon them in the name of copyright protection limits their use to that of a glorified catalog. The user inputs a search query and the HathiTrust digital library will tell them where to look, down to the book and page number. The user can then find the book in a library or purchase it elsewhere. The only exception is for print disabled individuals, who are granted full access to the library’s catalog.
Anyone remember that pair of Nicholas Cage abominations masquerading as "superhero films" from a few years back? Yeah. Those were awful. They also led to this lawsuit.
Though Marvel already had a horse-riding "Ghost Rider" character as early as 1966, freelance writer Gary Friedrich proposed a man on a motorcycle in 1972. Credit for the flaming skull head and the "pact with Satan to save [loved one's] life" cliché are still in dispute.
It sounds like Shepard Fairey should have fought back.
During the 2008 election cycle, Fairey used a 2006 Associated Press photograph to create his Barack Obama “Hope” design. The AP sued Fairey, who initially claimed fair use. He later settled the matter out of court, according to Photo District News.
Today, however, the Second Circuit Court of Appeals issued a decision in a similar copyright infringement lawsuit, which suggests that Fairey was actually right about the fair use doctrine.