Tag Archives: infringement

Lost Profits or Disgorgement?

In trademark infringement cases involving competitors, the plaintiff typically seeks damages in the form of lost profits once infringement has been proven. The purpose of “lost profits” is to compensate the plaintiff for its losses. In contrast, disgorgement requires a defendant to give up all profits it has made as a result of illegal or … Continue Reading

Determining Fair Use Under the Copyright Act: Judge Versus Jury

When the Supreme Court ruled in 1998 that copyright infringement lawsuits were subject to the Seventh Amendment’s right to jury trial, the natural consequence of that ruling was that fair use would likewise become a jury issue. However, at the time Congress enacted the Copyright Act’s fair use provision, 17 U.S.C. § 107, copyright infringement … Continue Reading

Started From the Bottom, Now We’re Real: Drake’s Use of Jimmy Smith’s Commentary on ‘Real Music’ Considered Fair Use

On May 30, 2017, Judge William H. Pauley III, in the Southern District of New York, ruled that rapper-singer-songwriter Drake was permitted to use a sample of jazz artist Jimmy Smith based on the fair use doctrine, even though Drake and his record label did not license the publishing rights to the song. The court … Continue Reading

Federal Circuit Tasked With Analyzing Evidence For Proof That Defendant Had the State of Mind Necessary For Induced Infringement

On January 19, 2016, the Supreme Court issued a grant-vacate-remand order in a dispute between rival medical device companies Medtronic and NuVasive. The order directs the Federal Circuit to revisit its decision in light of the Supreme Court’s ruling in Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015). Commil clarified that … Continue Reading

Another Step in the Long March from Campbell v. Acuff-Rose toward Fair Use Free-for-All?

Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014) TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or phrases to determine and review an aggregation of instances … Continue Reading

Starbucks Coffee, Burned Again

This past Friday, Starbucks received yet another blow in its 12-year long trademark dispute against Wolfe’s Borough Coffee Inc.  The Second Circuit affirmed U.S. District Judge Laura Taylor Swain’s decision and found that Starbucks failed to prove that Wolfe Borough’s “Charbucks,” “Mister Charbucks,” and “Mr. Charbucks” marks were likely to dilute its brand.  As such, … Continue Reading

Legislative Watch: Trade Facilitation and Trade Enforcement Reauthorization Act of 2013

Editor’s Note: This article was originally published as a BakerHostetler Executive Alert on November 13, 2013 Authored by: Heather J. McDonald and Jenna Felz A proposed U.S. Senate Bill has the potential to change the way in which intellectual property infringement is reported and enforced. U.S. Senate Bill 662 (“S. 662”), the Trade Facilitation and Trade Enforcement Reauthorization … Continue Reading

Cars Lawsuit Runs Out of Gas

The United States Supreme Court recently brought final resolution to Mandeville-Anthony v. Walt Disney Co., a dispute over the ownership of Disney and Pixar’s animated movies “Cars” and “Cars 2,” and the spin-off television series “Cars Toon.”  The plaintiff originally filed the case in 2011 in the Central District of California alleging two claims.  First, … Continue Reading

Hulkamania is Running Wild: Let the Battle Begin (in Court)

Terry Bollea, better known as the professional wrestler with the stage name Hulk Hogan (“Hogan”), is involved in an unattractive legal battle that presents an unusual intersection of the First Amendment, copyright law, and privacy/publicity issues. Hogan filed two lawsuits arising out of a 2006 sexual encounter with Heather Clem (“Heather”), then the wife of … Continue Reading

Whoa Nelly: Furtado and Timbaland Defeat Copyright Claim as Plaintiff Fails to Show Evidence

In what might have otherwise been a legitimate case of copyright infringement, Kernel Records–the plaintiff in Kernel Records Oy v. Timothy Mosley et al., had its case tossed out because of an evidentiary failure. Section 411 of the Copyright Act is clear: absent special circumstances, a plaintiff must attain a copyright registration, as discussed here.  One … Continue Reading

Illegal Music Downloaders Beware

For the second time in under a month, a court has confirmed a large statutory damages award against an illegal music downloader.  In the latest development in a six-year long dispute over illegal music downloads, the Eighth Circuit issued a unanimous decision last week and reinstated a $220,000.00 jury verdict against Ms. Jammie Thomas-Rasset.  Ms. Thomas-Rasset … Continue Reading

An Expensive Lesson: 30 Illegal Song Downloads Cost $675,000.00.

In 2005 the parents of Joel Tenenbaum, then a college student, received a notice directing them to call the Recording Industry Association of America (RIAA) to arrange payment of $5,250 for pirated music downloaded to their home computer.   The songs were downloaded by Mr. Tenenbaum.  Neither he nor his parents met the demand.  In 2007, Sony Music … Continue Reading

Madonna Sued in Sampling Lawsuit

VMG Salsoul LLC filed a complaint for copyright infringement on July 11, 2012 in California District Court against Madonna, Shep Pettibone, and other music industry-related defendants.  At the heart of the complaint is a claim for copyright infringement based on illegal sampling.  According to the complaint, the timeless Madonna classic, “Vogue” contains intentionally hidden illegal … Continue Reading

Louis’ Hangover

A federal judge has dismissed Louis Vuitton Malletier SA’s trademark infringement suit against Warner Bros. Entertainment Inc. over the studio’s use of a knockoff bag in “The Hangover Part II.”  U.S. District Judge Andrew L. Carter Jr. granted Warner Bros.’ motion to dismiss after finding that public confusion as to the bag’s origin was unlikely, … Continue Reading

Google Takes Action Against MP3 Conversion Sites

Google fired a warning shot across the world of Internet piracy by threatening legal action against conversion giant YouTube-MP3.org as well as Music-Clips.net and potentially other websites.  As reported by torrentfreak.com, a letter was sent out by Google demanding that the popular websites cease using the YouTube API (Application Programming Interface) to allow users to “separate, … Continue Reading

Ninth Circuit to Consider the Impact of Viacom

The Court of Appeals for the Ninth Circuit Court might re-examine the Digital Millennium Copyright Act (the “DMCA”) copyright infringement safe harbor standards.  The Ninth Circuit ruled last year in UMG vs. Veoh, a case dealing with user-uploaded music videos, that Veoh, a video-sharing website was protected under the safe harbor provision of the DMCA.  Now, … Continue Reading

Megaupload Challenges U.S. Indictment

In the latest twist in one of the largest Internet piracy actions brought by the U.S. Government to date, attorneys for Megaupload.com and its founder, Kim Dotcom, are challenging whether the United States had the right to bring the action waged against Megaupload and its executives this past January. On May 30, 2012, Megaupload’s legal … Continue Reading

Copyright Law 101: The Registration Requirement

The U.S. Copyright Act has certain formalities; one of the simplest and easiest to understand is the so-called “registration requirement.”  This is an important requirement—it governs when a copyright owner can bring a lawsuit for copyright infringement.  Section 411(a)‘s terms are clear and unambiguous: no action for may be instituted until registration has been made … Continue Reading

Viacom v. YouTube: A Question of Fact

Viacom recently asked a federal court to order YouTube to pay it more than $1 billion in damages for about 150,000 videos that Viacom claims it owns and YouTube users have shared.  It accused YouTube of harnessing video-sharing technology permitting users to infringe copyright on a massive scale, harming not only Viacom but also “one … Continue Reading