The Very Interesting World of Intellectual Property

April 22, 2017

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual property law enables individuals to claim exclusive rights and financial gain from what they invent or create, which is a benefit to both creators and the public. With its foundation in human ingenuity, it should be no surprise that for the intellectual property professional, work days cannot be characterized as dull or boring. To state that another way, intellectual property law is unendingly interesting, especially when genius mixes with mortal unpredictability.

Consider:

Tattoo artists—yes, tattoo “artists”—recently filed a copyright suit claiming unauthorized use of their ink designs. The company, Solid Oak Sketches, LLC, designed several tattoos for NBA players and later registered copyrights. The tattoos were included in video games and advertising of those NBA player-characters created by 2K Games, Take-Two Interactive Software, Inc., and Visual Concepts, LLC. The game hasn’t been a winner for the artists, though. A New York federal judge ruled against Solid Oak Sketches’ claim of statutory damages and attorney’s fees because the plaintiff did not register the copyright before the first alleged infringement.

How about the tiff that involves farmers, tractors and the 1998 Digital Millennium Copyright Act? Farmers in Nebraska, Minnesota, Massachusetts and New York are working toward legislation called “fair repair” that will enable them to legally repair their own tractors or hire an independent mechanic. The need for legislation is based in state-of-the-art tractors, which now include all the bells and whistles of modern technology—plus software. Manufacturers argue that allowing farmers to fix their tractors could allow for some messing with the protected software and subsequent vulnerability to piracy, third-party development and competitors. As is, no matter the problem, farmers must take the vehicles to dealerships for repair or else, a requirement that irks farmers who believe they are better equipped to make simple repairs farm-side.

Not only is intellectual property law interesting, but it is sweet, sorta, as evidenced by the candy wars in Sweden. M&M’s—those delicious, multi-colored chocolate candies—can no longer be sold in Sweden as of June 2016. A Swedish appeals court ruled against candy maker Mars Inc. in a trademark dispute with Kraft Foods, which sells chocolate-covered peanuts under the Marabou brand with a single, lowercase “m” on the package. The Court ruled that the two brands are confusingly similar.

One can’t help but be amazed by the story of American photographer Carol M. Highsmith who has filed a copyright lawsuit against Getty Images Inc. of Getty Museum fame under the Digital Millennium Copyright Act charging Getty of gross misuse of more than 18,000 of Highsmith’s photographs. The trouble began in December 2015 when Highsmith received a letter from Getty accusing her of copyright infringement and demanding payment for displaying one of her own photographs on her website. Beginning in 1988 and continuing to the present, Highsmith has been providing the United States Library of Congress with the public right to reproduce and display her photographs of people and places in the United States for free. Highsmith subsequently learned that the Getty has been sending out similar threats to other users of her photography, and that Getty and Alamy Inc. are allegedly selling licenses for thousands of her photographs on commercial websites. Highsmith’s lawsuit requests $1 billion in damages.

Language matters! Paramount Pictures Corporation and CBS Studios, Inc. filed suit against Alec Peters and Axanar Productions, the creators of a Star Trek fan film, for copyright infringement. Paramount Pictures and CBS own the copyright to the Star Trek franchise. At issue in the crowd-funded Star Trek fan film, Axanar, were original Star Trek characters, species, uniforms, planets, the Enterprise and, of course, the Klingon language. For non-Trekers, the Klingon language is a language that was created for the fictional Klingons in the Star Trek universe (e.g., yes: Hija’; no: ghobe). A settlement was reached between parties earlier this year that allows Axanar Productions to continue showing Prelude To Axanar commercial-free on YouTube and to allow Axanar Productions to produce the Axanar feature film as two fifteen-minute segments that can be distributed on YouTube (also without ads).

Add lots of money to intellectual property drama and it is instantly more interesting. A Texas federal judge recently tripled a jury’s verdict against Samsung Electronics for knowingly infringing two of Imperium IP Holdings Ltd. imaging patents, finding that the violations were willful and warranted enhancement. In making the determination to triple the damages—from $7 million to $21 million—Judge Amos Mazzat of the U.S. District Court for the Eastern District of Texas cited the Supreme Court’s decision of June 2016 in Halo Electronics v. Pulse Electronics. In that case, the Court rejected the rigidity of the Seagate test to determine when enhanced damages for willful infringement can be awarded, saying that there is no precise rule or formula for awarding enhanced patent damages under 35 U.S.C. § 284.

For about 20 years, rock music fans have been following a copyright infringement case involving Led Zeppelin’s famed song “Stairway to Heaven” and Randy Wolfe, Spirit band member and songwriter of “Taurus.” (The Spirit band used to open for Led Zeppelin concerts.) The saga crescendoed when a Los Angeles jury determined that “Stairway to Heaven” was not copied from Spirit’s instrumental, “Taurus” in spite of Michael Skidmore’s (trustee of the estate for Spirit’s Randy Wolfe) efforts to convince otherwise. Skidmore argued that the guitar riff in “Stairway to Heaven” was a rip-off from “Taurus.”

Last, and perhaps the amazingly weirdest, is the infamous “monkey selfie.” The monkey selfies are a number of selfies “taken” by Celebes crested macaques using photography equipment owned by nature photographer David Slater. Slater was taking photos on the Indonesian island of Sulawesi when a curious macaque nick-named Naruto approached his cameras and began using them to take a variety of pictures, including one of itself. The funny shot of the seemingly smiling macaque made its way to Wikimedia Commons where people are free to download. Slater demanded the shot be removed from Wikimedia Commons because he is the copyright owner. Wikimedia refused because it claimed Slater didn’t take the image and is not the copyright owner. In December 2014 the United States Copyright Office stated that works created by a non-human are not subject to U.S. copyright. In 2016, a federal judge ruled that the monkey cannot own the copyright to the images and Slater continues to claim copyright. However, People for the Ethical Treatment of Animals, Inc. has very recently pressed the issue again, arguing that famed Naruto should be considered “author” of the work under U.S. copyright law.

The moral of this story? The stories of intellectual property law are infinitely dynamic, surprising, amazing and curious. And as technology, human creativity and law develop and intersect, new problems with new question arise. The seeking of those answers is the IP professional’s wild ride and the heart of San Diego IP Law Group LLP.