Review Patent © thin holes scènes à faire? • can exclude competitors • should not exclude competitors • no requirement of copying • copying required Copyright Remedies • Injunctive Relief • impounding and disposition of infringing articles • Monetary Relief • actual damages; and or • statutory damages • infringer’s profits • Criminal Prosecution §412 (registration req’d)) • No Electronic Theft (NET) Act • Costs and Attorney Fees • prevailing party (w/i court’s discretion) 1 Injunctive Relief v. According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. * * * This approach is consistent with our treatment of injunctions under the Copyright Act. Like a patent owner, a copyright holder possesses “the right to exclude others from using his property.” Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also id., at 127-128 (“A copyright, like a patent, is at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects” (internal quotation marks omitted)). Like the Patent Act, the Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed. See, e.g., New York Times Co. v. Tasini, 533 U.S. 483, 505 (2001) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n. 10 (1994)); Dun v. Lumbermen's Credit Assn., 209 U.S. 20, 23-24 (1908). eBay v. MercExchange, 547 U.S. 388 (2006) 2 We hold today that eBay applies with equal force (a) to preliminary injunctions (b) that are issued for alleged copyright infringement. Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) 3 Damages and Profits - §504(b) Actual Damages Profits $57 m • $50 – revenue for creating an add- itional pattern $29 m Damages and Profits - §504(b) Actual Damages Profits $229 m • $50 – revenue for $172 m creating an add- Apportionment itional pattern Sheldon v. MGM $57m 4 Damages and Profits - §504(b) Actual Damages Profits $57 m • $50 – revenue for creating an add- itional pattern $2.35 $29 m $2 m apportionment .0001176% Statutory Damages - §504(c) • per work (all parts of a compilation or derivative work constitute one work) • © must be registered prior to infringement (§412) $750 < court award < $30,000 $200 $150,000 innocent infringement willful infringement v. MyMP3.com service 4700 records @ $25,000 per infringement = $118 million settled for $53.8 million 5 When the defendant denies using the plaintiff’s work, or claims that the extent of the use is not infringing, infringement requires proof of: Infringement Analysis 1. Factual Copying 2. Copying as a Legal Matter of resulting in Actual copying Copyright Substantial protected material similarity is proved by is identified by which requires consideration of dissecting the substantial plaintiff’s work the type of people direct evidence similarity between into elements to whom the works seem similar an element of the defendant’s work then or by evidence of and a “Golden and Nugget” from the evaluating the plaintiff’s work access protectability of each element the nature of or ? the similarity “Inverse then substantial plus Ratio similarity of the two Rule” filtering out the works as a whole probative similarity and aka unprotected substantial similarity elements the degree of “Sliding scale”: or leaving only which are similarity that the fewer ways what the amounts to there are to fact-finder “substantial” express an idea, striking similarity “Golden Nuggets” considers the greater the when similarity must be evaluating COMPARISON Abie’s Irish Rose The Cohens and the Kellys Protectable Elements Story - Main Idea Plot Outline Subplots General Characters and Scenes Specific Character Elements Text 6 7 Windows 1.0 Apple Mac OS System 1.1 (no overlapping windows) Licensing Agreement 1. Microsoft may use and sublicense derivative works MEMORANDUM generated by Windows 1.0. 2. Microsoft will develop To: and release Word and Excel Threat to sue for Mac. * * * 1983 1985 8 Windows 2.03 Apple Mac OS System 3.0 COMPLAINT ) v. ) ) © 1983 1985 1988 9 10 STANDARD FOR DETERMINING ILLICIT COPYING Apple v. Microsoft (9th Cir. 1994) Virtual Identity Substantial Similarity Broad Narrow E.g., artisitic works E.g., predominantly functional works Range of Protectable, Unauthorized Expression 11 12 Data East: Karate Champ Epyx: World Karate Champ The fifteen features listed by the court “encompass the idea of karate.” These features, which consist of the game procedure, common karate moves, the idea of background scenes, a time element, a referee, computer graphics, and bonus points, result from either constraints inherent in the sport of karate or computer restraints. The lower court erred by not limiting the scope of Data East’s copyright protection to the author’s contribution – the scoreboard and background scenes. In actuality, however, the backgrounds are quite dissimilar and the method of scorekeeping, though similar, is inconsequential. Based upon these two features, a discerning 17.5 year-old boy could not regard the works as substantially similar. Data East v. Epyx, 862 F.2d 204 (9th Cir. 1988) 13 US Code Title 17 C © A L 1. © Work Made for Hire I F O 2. Assignment Agreement? R N I • California Labor Code § 2870 A 14 freelance artist Works Made for Hire 1976 Act Regime (1) employee (2) independent contractor • agency relationship– multi-factor test: • “specially ordered or commissioned” • Right to control work being performed • within an enumerated category: • Skill required • Source of instrumentalities and tools • contribution to collective work • Location of work • part of motion picture/AV work • Duration of relationship • translation • Right to assign additional projects • supplementary work • Hired party’s discretion • compilation • Method of payment • Role in hiring and paying assistants • test • Regular course of employer’s business • answer material for a test • Payment of employee benefits, taxes • atlas • within scope of employment (note: principally collaborative works) • written agreement signed by both parties expressly stating “work made for hire.” Employee Confidential Information and Inventions Agreement 2. Ownership of Inventions [a] I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during employment by the Company. I hereby assign to the Company and/or its nominees all my rights, title and interest in such inventions, and all my rights, title and interest in any patents, copyrights, patent applications or copyright applications based thereon. * * * [b] As used in this Agreement, the term “inventions” includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data, computer programs and formulae, whether patentable or unpatentable. 15 California Labor Code § 2870 (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. 1 Exhibit CB1 16 Bryant “Jade” Drawings MGA Jade Doll 1 Exhibit CB3 Bryant “Zoe” Drawing MGA Cloe Doll 2 Exhibit CB3 17 Bryant “Lupe” Drawing MGA Yasmin Doll 3 Exhibit CB3 Bryant “Hallidae” Drawing MGA Sasha Doll 4 Exhibit CB3 18 Bratz Group Illustration Bryant Drawing Bratz Packaging 5 Exhibit CB3 Bryant Bratz Drawing Bratz Sculpt 6 Exhibit CB3 19 Infringement Analysis: Abstraction-Filtration-Comparison LEVELS OF ABSTRACTION Upon any work . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can. Nichols v. Universal Pictures Corp Story - Main Idea 45 F.2d 119 (2nd Cir. 1930) Plot Outline Subplots General Characters and Scenes Specific Character Elements Text 20 ABSTRACTION