Copyright Law 1987 (Media Law)

ASSIGNMENT FOR MLL 2013

MOHAMAD ABU HUZAIFAH BIN MOHD SALLEH

1121118373

TRIMESTER 1730

2017/2018

Copyright Act 1987

Lecture on Infringement of Copyright

This blog entry is intended for study or research purposes only on topics related to copyright issue.  I chose to discuss a topic about copyright issue arising in creative multimedia. First of all, before i go more deep about copyright, I want to discuss and explain about the meaning of copyright. Copyright is a legal right that grants the creator of an original work exclusive rights for its use and distribution. This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright is that copyright protects only the original expression of ideas, and not the underlying ideas themselves.

Copyright is a form of intellectual property, applicable to certain forms of creative work. Some, but not all jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.

Copyrights are considered "territorial rights", which means that they do not extend beyond the territory of a specific jurisdiction. While many aspects of national copyright laws have been standardized through international copyright agreements, copyright laws vary by country.
Typically, the duration of a copyright spans the author's life plus 50 to 100 years (that is, copyright typically expires 50 to 100 years after the author dies, depending on the jurisdiction). Some countries require certain copyright formalities to establishing copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the creator's exclusivity of copyright and giving users certain rights. The development of digital media and computer network technologies have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to the philosophical basis of copyright law. Simultaneously, businesses with great economic dependence upon copyright, such as those in the music business, have advocated the extension and expansion of copyright and sought additional legal and technological enforcement.

Copyright came about with the invention of the printing press and with wider literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the 18th century. The English Parliament was concerned about the unregulated copying of books and passed the Licensing of the Press Act 1662, which established a register of licensed books and required a copy to be deposited with the Stationers' Company, essentially continuing the licensing of material that had long been in effect.

Copyright laws allow products of creative human activities, such as literary and artistic production, to be preferentially exploited and thus incentivized. Different cultural attitudes, social organizations, economic models and legal frameworks are seen to account for why copyright emerged in Europe and not, for example, in Asia. In the Middle Ages in Europe, there was generally a lack of any concept of literary property due to the general relations of production, the specific organization of literary production and the role of culture in society. The latter refers to the tendency of oral societies, such as that of Europe in the medieval period, to view knowledge as the product and expression of the collective, rather than to see it as individual property. However, with copyright laws, intellectual production comes to be seen as a product of an individual, with attendant rights. The most significant point is that patent and copyright laws support the expansion of the range of creative human activities that can be commodified. This parallels the ways in which capitalism led to the commodification of many aspects of social life that earlier had no monetary or economic value per se.

Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.

In addition, intellectual property right is a generic name foe exclusive legal rights that arise from intellectual property aforementioned. The law ensures that owners of creative works, inventions and commercial goodwill are protected. This protection is provided through national legislation and international conventions.

The question is who is an author? A writer or composer or artist. Or the person by whom the arrangement for the the taking of the photograph were undertaken. Or the person by whom the arrangements for the making of the film or recording were undertaken. The person transmitting/providing a broadcast programme and any person by whom the work was made.

These people are copyright owners. 1. Architects 2. Computer Programmers 3. Lyricists 4. Scriptwriters 5. Photographers 6. Artist. There are two elements of copyright. The first one is originality. Means in order for a material to be protected under copyright, it must be "an original work of authorship". The second one is fixation. Means, tangible medium example it must be reduced to a fixed form. Sufficiently permanent or stable medium to permit the copyright able material to be perceived. Therefore a poem that is not recorded or a lecture that is not taped cannot be protected under the law.

Next question is what is original?

- Independently created
- Not copied or duplicated
- Sufficient skill and effort
- Creative

For defence to copyright infringement, there is Section 13(2). It's about Fair use/Fair Dealing.
The content of the Section 13(2) is where a copyrighted material is used for  purposes of non-profit research, private study, critcism, review or the reporting of current events. If such use is public, then it must be accompanied by an acknowledgement of the tittle of the work and its authorship.

But how can you protect your copyright? There is way to protect it. For example, although there is no requirement to register copyright, the law has provided means by which a copyright owner can protect his/her work. And it effective from 1 June 2012, the copyright(Voluntary Notification) Regulations 2012 allows a copyright owner to issue a Copyright Voluntary Notification with MyIPO.

A copyright symbol used in copyright notice

Next, I will discuss and explain about what is category of Multimedia in the Copyright Act. Actually, There is no specific category of multimedia in the Copyright Act. Multimedia is a relatively new term that refers to a combination of material, the individual parts of which might be otherwise available in a digital format.

Next, what is Multimedia product? A multimedia product is one where:

• the content can be viewed or accessed in a non linear way
• the information is stored on a computer program or memory chip
• the information is accessed by a user through the use of specialised computer program

Examples include CD-Roms, interactivity websites and interactive computer games (eg text and graphic based learning objects such as interactive Flash animations). It could also include interactive or audiovisual content in an artwork, such as a video installation

The next question is how are multimedia products protected under copyright? The exact form of protection for a multimedia product in the Copyright Act is unclear. The three main categories under which multimedia products may be protected are as a:

• computer program (sub category of a literary work)
• compilation (sub category of a literary work)
• film

1. Computer program

Where a multimedia product contains computer programs or software that allow non linear viewing of the material or use of the material contained in the multimedia product, it may be categorised as a computer program.

2.  A compilation

A multimedia product that mainly is made up of text, figures and symbols may be categorised as a compilation, a sub category of literary Works. If the product is made up of artistic images only, it will not be a compilation and each image would be protected separately as an artistic work. If the product is made of both text and images, it is likely the images would be protected separately as artistic works.

Film

If the multimedia product contains any images that are capable of being shown as a moving picture (film or video) the product may be categorised as a film.

Copying and communicating material from multimedia

In general, copyright in print works, musical artistic works, sound recordings, and film contained in a multimedia product will not be infringed where the copy or communications is done with the express permission of the copyright owne and under the fair dealing, flexible dealing or other educational exceptions.

Fair dealing

The copying of multimedia products or work contained in multimedia products for fair dealing purposes is free and does not require the permission of the copyright owner. The relevant fair dealing exceptions are:

• research or study eg a student making a copy of works from a CD-Rom for use as part of their studies
• criticism or review eg a student reviewing an interactive computer game for a student publication
• parody or satire eg a teacher using content from a film to make a satirical point during class

Flexible dealings 

Schools and TAFE institutes can now use multimedia products for non-commercial teaching purposes if the use is not covered by another exception or Statutory or Voluntary Licence. To use the flexible dealings exception, teachers must assess whether the proposed use Is a special case your use will be a special case where it is narrow in both a qualitative or quantitative sense.  This means that you are only using what you need for educational instruction

Is for educational instruction educational instruction means teaching (including remote teaching), preparation for teaching, preparing materials for students to use for homework or research tasks, or other uses that are in connection with teaching.

Educational exceptions

There are no statutory educational exceptions that deal specifically with multimedia products

Other relevant issues for multimedia Works

Creating new multimedia products

Multimedia products often incorporate existing works which are separately protected under copyright, for example:

1. • text (literary works)
   • images (artistic works)
   • music (musical works and sound recordings)
   • film or videos.
   Staff or students may be able to incorporate existing works into a new multimedia product relying on a fair dealing purpose or the Statutory Text and Artistic Licence.
   However if they wish to show or distribute the multimedia product other than for an educational purpose, they must obtain permission (a licence) from the copyright owners of the relevant works. If the material being incorporated is unpublished, you should always obtain permission from the copyright owner.
2. Who is the copyright owner of the new multimedia product?The issue of ownership of material created by teachers is usually dealt with in teacher employment contracts and/or contracts appointing casual teachers. Any material created by students will usually be owned by the student.For educational institutions producing multimedia products with staff and/or students, the institution should obtain a written assignment of all copyright in the material. This will prevent any claims being made at a later stage.
3. Moral rights You should always be aware that the creator of an multimedia product has moral rights in that work which must be respected. 

Wait!! What's more?

What counts as copyright infringement?

The Copyright, Designs and Patents Act 1988 states that “copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright”

Online Copyright Infringement (DMCA)  

What is CONTRIBUTORY COPYRIGHT INFRINGEMENT? What does CONTRIBUTORY COPYRIGHT INFRINGEMENT mean?

 Here are the example case of copyright.

1. A&M Record Inc v Napster Inc (Click for more detail)

In 2000, one of the most famous cases in intellectual property law was taken to the U.S. Court of Appeals, 9^th Circuit, when a group of major record labels took on Napster, Inc. The music file-sharing company, set up by then 18-year old Northeastern University student Shawn Fanning and his partner Sean Parker, was a revolutionary piece of sharing software, which allowed users to share any number of music files online. At its peak the software had around 20 million users sharing files peer-to-peer. A&M Records, along with a list of 17 other companies and subsidiaries accused Napster of copyright infringement, for allowing users to search and download MP3 files from other users’ computers. Rock band, Metallica and hip hop star Dr Dre also filed separate cases against the sharing software company. These cases led to a federal judge in San Fransisco ordering Napster to close its free file-sharing capacities. After the judge’s decision, the company eventually declared bankruptcy before re-emerging as a paid online music service, while German Media Corporation Bertelsmann AG ended up paying $130 million in damages to the National Music Publisher Association, after propping Napster up during its financial decline. This case is remembered as a defining case of the 21^st century, as it was one of the first to address the impact peer-to-peer file-sharing online could have on copyright.

Court	United States Court of Appeals for the Ninth Circuit
Full case name	A&M Records, Inc. v. Napster, Inc.
Argued	October 2 2000
Decided	February 12 2001
Citation(s)	239 F.3d 1004
Holding
Napster could be held liable for contributory and vicarious copyright infringement, affirming the District Court holding.
Court membership
Judge(s) sitting	Mary M. Schroeder, Richard Paez, Robert R. Beezer
Case opinions
Majority	Robert R. Beezer
Laws applied
17 U.S.C. § 501, 17 U.S.C. §106 2.  Star Wars Vs Battlestar Galactica (Click for more detail) The success of the first Star Wars film convinced Universal to quickly greenlight its own sci-fi property, Battlestar Galactica. Twentieth Century Fox felt that the new show was veering too closely to the Star Wars universe, and filed suit for copyright infringement. Universal moved for summary judgment on the ground that works were simply so dissimilar that no reasonable jury could find infringement. The Central District of California agreed and granted summary judgment, reasoning that the works were only similar on the most general level of intellectual abstraction, i.e., both were “a struggle between good and evil in space.” But the Ninth Circuit did not agree and held that there were many similarities between the works that “do in fact raise genuine issues of material fact as to whether only the Star Wars idea or the expression of that idea was copied.” Among the similarities cited by the Ninth Circuit were: A war between “the galaxy’s democratic and totalitarian forces,” which are depicted in alternating sequences between the two camps, and which culminate in an air attack on the totalitarian headquarters, followed by an awards ceremony; A friendly robot who is severely injured or destroyed by the totalitarian forces; A “romance between the hero’s friend (the cynical fighter pilot) and the daughter of one of the leaders of the democratic forces;” The destruction of “an entire planet, central to the existence of the democratic forces;” A scene in a cantina or casino “in which musical entertainment is offered by bizarre, non-human creatures;” and “Space vehicles, although futuristic, are made to look used and old, contrary to the stereotypical sleek, new appearance of space age equipment.” Galactica was produced in the wake of the success of the 1977 film Star Wars. And sci-fi author Jerry Pournelle, starring on a guest panel in This Week in Teck (episode 223), explains that “20th Century Fox sued Universal Studios (the studio behind Battlestar Galactica) for copyright infringement, claiming that it had stolen 34 distinct ideas from Star Wars.” Among them was a character named Skyler, a tad too close to Skywalker, and the possibility of airing with the title “Star Worlds”. Universal Studios didn’t take this news lightly. “I agreed not to use certain effects including laser streaks from our guns,” said Galactica creator Glen Larson, who supposedly met producer Gary Kurtz to figure things out. “I always consider [the case]very unfair because we had met… and they were in agreement not to take any action.” Furthermore, they “promptly countersued, claiming Star Wars had stolen ideas from the 1972 film Silent Running (the robot drones) and the Buck Rogers serials of the 1940s,” said Pournelle. He goes on to say that after Fox was sued, he was paid $20,000 by Universal to show that Battlestar Gallactica and Star Wars were made from two different cloths. In the end the case was decided in favour of Galactica two years later. Unfortunately, however, the original Battlestar Galactic” had been cancelled and cinemas were looking forward to seeing The Empire Strikes Back. The case was remanded and then reportedly settled before further proceedings took place. By that time, Battlestar Galactica had already been canceled. Twentieth Century Fox Film Corp. v. MCA Inc., 715 F.2d 1327 (9th Cir. 1983). 3.  Apple vs Microsoft (Click For More Detail) The battle between these tech giants started with a simple question: who invented the graphical user interface (GUI)? The company that controls the interface of the next major operating system will have the ability to set the standards for application software, so it’s unsurprising that Apple tried to stop Windows from becoming a major operating system. It seemed that although Microsoft helped develop Macintosh, Jean-Louis Gassée, who had taken over from Steve Jobs at the time, refused to allow Microsoft to use their software. Bill Gates pressed on nonetheless, deciding to add in features of its own to early prototypes of the Macintosh.  When Gassée noted the software, he was enraged. However, he didn’t want a lawsuit, and ended up agreeing to license the Mac’s visual displays. But Windows 2.0 turned out to be almost identical, and Gassée believed it to be a breach of contract, only having allowed their software to be used for 1.0 and not future versions. So, without warning, Apple filed a lawsuit against Microsoft in 1988. Apple’s case included 189 contested visual displays that violated its copyright. This led to a six-year long battle. In 1989, the court ruled that 179 of the 189 disputed displays were covered by the existing license. Furthermore, the other ten were not violations of Apple’s copyright due to the merger doctrine, where the idea–expression divide limits the scope of copyright protection by differentiating an idea from the manifestation of that idea. Apple had agreed to license certain parts of its GUI to Microsoft for use in Windows 1.0, but when Microsoft made changes in Windows 2.0 adding overlapping windows and other features found in the Macintosh GUI, Apple filed suit. Apple added additional claims to the suit when Microsoft released Windows 3.0. Apple claimed the "look and feel" of the Macintosh operating system, taken as a whole, was protected by copyright, and that each individual element of the interface (such as the existence of windows on the screen, the rectangular appearance of windows, windows could be resized, overlap, and have title bars) was not as important as all these elements taken together. After oral arguments, the court insisted on an analysis of specific GUI elements that Apple claimed were infringements. Apple listed 189 GUI elements; the court decided that 179 of these elements had been licensed to Microsoft in the Windows 1.0 agreement and most of the remaining 10 elements were not copyrightable—either they were unoriginal to Apple, or they were the only possible way of expressing a particular idea. The district court ruled that it would require a standard of "virtual identity" between Windows and the Macintosh at trial in order for Apple to prove copyright infringement. Apple believed this to be too narrow of a standard and that a more broad "look and feel" was all that should be necessary at trial. As a result, both parties agreed that a jury trial was unnecessary given the rulings, and Apple filed an appeal to the Ninth Circuit Court of Appeals in order to have the district court's characterization overruled. After the district court ruled in favor of Microsoft, Apple appealed the decision arguing that the district court only considered infringements on the individual elements of Apple's GUI, rather than the interface as a whole. The appeals court almost entirely affirmed the ruling of the district court, establishing that, "almost all the similarities spring either from the license or from basic ideas and their obvious expression... illicit copying could occur only if the works as a whole are virtually identical."  However, the circuit court did reverse the district court's decision not to award attorney's fees to Microsoft, clarifying and sending the case back to the district court to resolve the issue. Citing Brown Bag Software v. Symantec Corp., the circuit court dissected the GUI in order to separate expression from ideas (as expression, but not ideas, are covered by copyright law). The court outlined five ideas that it identified as basic to a GUI desktop: windows, icon images of office items, manipulations of icons, menus, and the opening and closing of objects. The court established that Apple could not make copyright claims based on these ideas and could only make claims on the precise expression of them. The court also pointed out that many of Apple's claims fail on an originality basis. Apple admittedly licensed many of its representations from Xerox, and copyright protection only extends to original expression. Apple returned to its "complete look and feel" argument, stating that while the individual components were not original, the complete GUI was. The court rejected these arguments because the parts were not original. The lawsuit was decided in Microsoft’s favor on August 24, 1993. 4. James Dyson vs Hoover (Click For More Detail) What has made Dyson so successful is the use of a bagless vacuum cleaner which uses two cyclones. One removes small particles while the other collects larger items. This is the patented technology that bitter rival Hoover infringed. According to Dyson, before him, nobody in the field had thought to sell a bagless vacuum cleaner. However, Alberto Bertali, managing director of Hoover European Appliances Group, claimed that the Tripple Vortex “ recirculated dusty air between three cyclones and did not filter it.” A counterclaim that the Dual Cyclone’s technology was “nothing that was not generally known within the industry,” was dismissed by the High Court. Unfortunately for them the High Court ruled that Hoover had intentionally copied the technology at the heart of Dyson’s Dual Cyclone vacuum cleaner. Dyson said: “Their claims that the Triple Vortex is different were shown to be completely false. Hoover showed no interest in the technology when we were looking for backers. Then they rubbished it when we brought out the bagless cleaner, insisting that bags are best. Finally they came out with a blatant copy.” The case centred on a patent taken out in June 1980 by Mr Dyson. It was the first of many patents taken out after 1978 when Mr Dyson became frustrated with a Hoover Junior and its cloth bag. While doing his cleaning, Mr Dyson was "struck by its inefficiency". He then replaced the bag in his Hoover Junior with a miniature cardboard cyclone made airtight with tape. It worked and he had made a crude bagless vacuum cleaner on a cyclonic principle. The breakthrough that ensured his success came when he combined two cyclones. The inner conical cyclone removed small particles while the outer cylindrical one collected larger items. It was the patent covering this cyclone series that Hoover infringed. Mr Dyson told the judge that before his machine, nobody in the field had commercially proposed or sold a bagless vacuum cleaner. Alberto Bertali, managing director of Hoover European Appliances Group, said the judgment was a setback. He repeated the Hoover claim that the Triple Vortex recirculated dusty air between three cyclones and did not filter it, therefore avoiding any infringement of the Dyson patent. He said: "We were looking for a much stricter interpretation of the patent." The breakthrough that ensured his success came when he combined two cyclones. The inner conical cyclone removed small particles while the outer cylindrical one collected larger items. It was the patent covering this cyclone series that Hoover infringed. Mr Dyson told the judge that before his machine, nobody in the field had commercially proposed or sold a bagless vacuum cleaner. Alberto Bertali, managing director of Hoover European Appliances Group, said the judgment was a setback. He repeated the Hoover claim that the Triple Vortex recirculated dusty air between three cyclones and did not filter it, therefore avoiding any infringement of the Dyson patent. But Dyson failed to stop Hoover using the “Vortex” trademark on its bagless cleaners. 5. Apple vs Google (Click For More Detail) Apple is no stranger to court, especially when it comes to Google. After all, there are several companies that are making phones using Google’s Android software. Steve Jobs repeatedly called the Android a “stolen product. I’m willing to go thermonuclear war on this.” Apparently things got so heated between Apple and Google that former Google CEO (and current chairman) Eric Schmidt stepped down from his position on Apple’s Board of Directors. In 2010, Apple sued Samsung. Google had to step in and help Samsung patly due to a ‘Mobile Application Distribution Agreement’. A Google lawyer revealed that the company agreed to “provide partial or full indemnity with regard to four patents.” And in one of the highest-profile lawsuits in technology, Motorola sued Apple at the same time Samsung was taken to court. Motorola accused Apple of infringing several patents, which included how cellphones operated on a 3G network. On the other hand, Apple claimed that Motorola violated its patent to certain smartphone features. The case was dismissed in 2012, the year that Google acquired Motorola, on grounds that neither company had sufficient evidence. In fact, frustrated judges have thrown the Apple vs Motorola out of court three times, telling them to solve their problems between themselves. Although Apple hasn’t attacked Google, probably due to the fact that Google provides a variety of iOS software. Instead, the company chooses to go for the company selling Android devices, but it seem that the search giant is intent on defending Android. It was only 16 May this year that Apple and Google released a joint statement saying that they have agreed to settle all patent litigation between them and that they will also “work together in some areas of patent reform”. In a joint statement on Friday, the companies said the settlement does not include a cross license to their respective patents. “Apple and Google have also agreed to work together in some areas of patent reform,” the statement said. Apple and companies that make phones using Google’s Android software have filed dozens of such lawsuits against one another around the world to protect their technology. Apple co-founder Steve Jobs called Android a “stolen product.” Google and Apple informed a federal appeals court in Washington that their cases against each other should be dismissed, according to filings on Friday. However, the deal does not apply to Apple’s litigation against Samsung Electronics Co Ltd. Apple has battled Google and what once were the largest adopters of its Android mobile software, partly to try to curb the rapid expansion of the free, rival operating system. But it has been unable to slow Android’s ascendancy, which is now installed on an estimated 80 percent of new phones sold every year. Motorola, the U.S. company that pioneered the mobile phone, no longer ranks among the biggest smartphone makers. 6. Gucci vs Guess (Click For More Detail) In 2009 Gucci sued Guess for infringing on five Gucci trademarks, including the use of similar logos. This is perhaps unsurprising given that Guess has been subject to 12 copyright complaints over the last ten years. But they have successfully managed to resolve all previous situations almost immediately… until they messed with Gucci. Guess used many of Gucci’s distinctive marks, including a green and red stripe used on handbags, the repeating, inverted GG pattern, and the company’s use of brown and beige colours, mostly used in conjunction with diamond shape patterns. Of course, Gucci came out on top, but not in the way they had hoped for. Initially asking for $221m in damages, the judge told Gucci they were only entitled to an accounting of profits and limited the damages. In the end, Gucci only received $4.7m. Guess was also barred from using most of their designs ever again, primarily the Quattro G patterns in brown and beige colours and the CRG stripe. What went wrong? Gucci’s defence. The judge concluded that “Over the years, Gucci has sent out hundreds of cease and desists letters to entities ranging from national companies such as Bebe, Juicy Couture, and Williams-Sonoma, all the way to small-time infringers, such as a counterfeiter working out of her Los Angeles apartment and a rabbi in New York, who they suspected might sell counterfeit Gucci products to benefit his synagogue.” When it came to Guess, they waited because the company was facing budgetary concerns due to counterfeiters. This marks Guess's second victory against Gucci so far. However, in 2012, a New York court ruled that Guess was guilty of copying four of the five trademarked logos Gucci addressed in its claim. According to the judge's decision in that case, the logos in question were the following: 1) the green-red-green Stripe mark 2) the repeating GG pattern 3) the diamond motif trade dress, which is the repeating GG pattern with a pair of inverted Gs in each corner rendered in a brown/beige color combination, 4) the stylized G design mark 5) the script Gucci design mark In a dramatic court case that involved tears and shady e-mails, Guess only ended up having to pay $4.7 million in damages, which was nothing compared to the $124 million Gucci was seeking and small change when you consider that Guess made nearly $2.7 billion in revenue in 2011.  Two major points weakened Gucci's case and contributed to the small payout. First, the judge noted that Gucci could not have been ignorant of Guess's designs until it finally filed the case in 2009, especially since both brands had similar advertising budgets and stores near each other, often in the same mall. (Guess was founded in 1981 and started producing the designs in question around 1995.) And secondly, the judge ruled Guess had diluted Gucci's logos, not counterfeiting them, saying, "courts have uniformly restricted trademark counterfeiting claims to those situations where entire products have been copied stitch-for-stitch." Furthermore, the company had failed to bring non-speculative evidence to court. 7. Rogers vs. Koons (Click For More Detail) Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to create a set of statues based on the image. Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by claiming fair use by parody. The court found the similarities between the 2 images too close, and that a “typical person” would be able to recognize the copy. Koon’s defense was rejected under the argument that he could have used a more generic source to make the same statement without copying Rogers’ work. Koons was forced to pay a monetary settlement to Rodgers. This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work? It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward. Art Rogers, a professional photographer, took a black and white photograph of a man and a woman with puppies in their arms to be used in greeting cards and other various types of merchandise. The photograph was entitled "Puppies". When Jeff Koons, a famous artist, saw the photograph, he decided to create a sculpture which would be based on the photograph to be readied for an art show. Koons then removed the copyright notice from the picture and gave it to his assistants to begin modeling the picture for a sculpture. According to court reports, Koons asked his assists to copy as much detail as possible from the photographs. The only changes that were made during the transition were larger noses on the puppies, their fur was made blue, and the man and woman were given flowers in their hair. The sculpture was named "String of Puppies" and became a success for Jeff Koons, who was able to sell three of the statues for $367,000. You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist? 8. The Associated Press vs. Fairey (Click For More Detail) Famous street artist Shephard Fairey created the Hope poster during President Obama’s first run for presidential election in 2008. The design rapidly became a symbol for Obama’s campaign, technically independent of the campaign but with its approval. In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia with the AP demanding compensation for its use in Fairey’s work. Fairey responded with the defense of fair use, claiming his work didn’t reduce the value of the original photograph. The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work. Though there wasn’t a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It’s unlikely that Garcia’s work could have ever reached the level of fame it did, if not for Fairey’s poster. Garcia himself stated he was “so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had,” but still had a problem with the fact that Fairey took the image without permission and without credit for it’s originator. Credit, credit, credit! On 99designs you cannot use licensed work but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source. Mr. Fairey, who sued The Associated Press in 2009 as it began to accuse him of copyright infringement for using one of its photographs as the basis for the poster, said that he did not appropriate any copyrightable material and that his use of the photograph, which showed Mr. Obama looking up pensively, constituted fair use under copyright law. Last year Mr. Fairey admitted that he had misstated which A.P. photo he had used for the Obama image and that he had submitted false images and deleted others to conceal his actions, leading to a criminal investigation in addition to the civil case. Mr. Fairey originally said that he had used a photograph from an April 27, 2006, event at the National Press Club in Washington, where Mr. Obama was seated next to the actor George Clooney. Instead, the photograph he used was from the same event, but was a solo image of Mr. Obama’s head. The photograph was taken by Mannie Garcia for The A.P. Mr. Fairey said that he had initially believed that The A.P. was wrong about which photo he had used, but later realized that the agency was right. In settling the civil lawsuit, “The A.P. and Mr. Fairey have agreed that neither side surrenders its view of the law,” The A.P. said in a statement on Wednesday. “Mr. Fairey has agreed that he will not use another A.P. photo in his work without obtaining a license from The A.P. The two sides have also agreed to work together going forward with the ‘Hope’ image and share the rights to make the posters and merchandise bearing the ‘Hope’ image and to collaborate on a series of images that Fairey will create based on A.P. photographs.” The statement added that the two sides had agreed to “financial terms that will remain confidential.” In a statement released by The A.P., Mr. Fairey said: “I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images.” Contacted through his publicist, Mr. Fairey declined to say anything more. A separate copyright infringement lawsuit against Obey Clothing, which makes T-shirts and other apparel with the ‘Hope’ image, has not been settled and remains in court, The A.P. said. Because of the issues at stake and the high visibility of the parties involved, the case had shined a spotlight on the tricky legal issues surrounding the fair-use exceptions to copyright protections. One of the central questions was whether Mr. Fairey’s creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama’s campaign, constituted a “transformative” use of the photograph, a use that is allowed under the law so that creative expression is not stifled. Mr. Fairey, 40, has become one of the best-known practitioners of a guerrilla-style street art that emerged from the graffiti scene but has expanded well beyond paint to include a wide variety of techniques and materials. Mr. Fairey made his name plastering buildings with fake-advertising stickers and posters showing an ominous, abstracted image of the wrestler André the Giant along with the word “Obey.” He decided to create the “Hope” poster after encouragement by the Obama campaign, which welcomed it but never officially adopted it because of the very copyright concerns that later erupted. Mr. Fairey has maintained that he has never personally profited from sales of the image, a contention The A.P. has disputed. A collaged work made by Mr. Fairey based on the poster was acquired in early 2009 by the National Portrait Gallery in Washington, part of the Smithsonian Institution, and is now in its permanent collection, along with portraits of George Washington by Gilbert Stuart, and Richard M. Nixon by Norman Rockwell. 9.  Modern Dog Design vs. Target Corporation (Click For More Detail) Seattle design firm Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011. TBD. There hasn’t been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue. The Modern Dog case has brought to light a question burning in the mind of many designers and artists — what happens if a major corporation with many more resources than me, utilizes my artwork for profit? Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it’s turning into a very extreme situation for them. We’ll have to keep an eye out for how this progressed and continues to change the conversation around this issue. Always defend your designs. Regardless of who you’re going up against if you think your design is in the right, then make it known. Modern Dog’s case is as follows. They claim that Disney and Target used their design in a tee shirt they were selling, and also featured photos of the tee shirt on their web site. Their claim is against Target and Disney making unauthorized copies of the artwork for use on shirts. The substantial part here, is that Modern Dog claims Disney and Target had access to their book, and purposefully stole the image for their own use. They claim specifically, that those at Disney used Amazon’s “look inside” feature on the book, and took the image from there. They also claim that the book had an explicit copyright notice, and that Disney and Target both removed said copyright notice to attempt to circumvent the copyright system. This is a bit of a silly claim, as we all know that under current US copyright law, anything is copyrighted once it’s in a fixed medium, such as this drawing, and doesn’t matter whether they had put a copyright notice or not. Furthermore, they weren’t actually circumventing anything, as again, the copyright notice isn’t mandatory any longer. Disney and Target’s defense was not explicitly stated anywhere, though I can think of a possible defense that they could use. A tee shirt is obviously a useful article, and as we all know, covered under the useful articles section of copyright. Where this falls short though, is the fact that while the useful part of a useful article isn’t covered under copyright, the design here serves no purpose, and is covered separately under copyright law. This leaves Target and Disney in a bad place as far as a case against infringement. All in all, if you take a look at the two images, it’s clear that Target and Disney took the image, as certain parts of the original work are copied exactly, down to the signature name below the drawing. To make an irrefutable claim, Modern Dog will have to show that Disney and Target did actually look at their design when making the tee shirt. Modern Dog went as far as to say that that their design was well available at the time that Disney and Target made their design. This will ultimately come down to the court officials, and their judgement of whether this is sufficient evidence for proving that Disney and Target did in fact take the design from Modern Dog’s book. 10.  Upin & Ipin Tee Printing Cases (Click For More Detail) A garment wholesaler has been fined RM300,000 for having 150 T-shirts with the cartoon characters “Upin & Ipin” without permission from its copyright owner. Wholesaler Fook Tai Sdn Bhd, who was represented by its director Yap Kien Sing, 49, was slapped with the summons case in a Sessions Court (Intellectual Property) yesterday. The wholesaler pleaded guilty to owning the round neck T-shirts when its copyright belonged to Les’ Copaque Production Sdn Bhd at its premise in Lorong Haji Taib 4, Jalan Raja Laut, at about 5.30pm on May 22, 2009. According to the facts of the case, an enforcement team from the Domestic Trade, Co-operatives and Consumerism Ministry had raided the premises on that day with a search warrant. However, Yap failed to open the grille and left the place. It was only when the team sought help from the police that Yap unlocked the grille and allowed them to enter the premises. This is the first case of copyright infringement involving T-shirts and the printing of such cartoons. Pleading for leniency, his lawyer Harjinder Singh Sandhu said the prosecution had in a letter dated July 26, stated it had no objection for a lower fine if Yap admitted guilt on behalf of the company. The wholesaler's director Yap Kien Sing, who faced a summons case in the Sessions Courts last Friday pleaded guilty to owning the T-shirts without seeking permission with owner Les' Copaque Production Sdn Bhd. Reportedly an enforcement team from the Domestic Trade, Co-operatives and Consumerism Ministry raided the alleged premises with a search warrant. However, Yap failed to open the grille and left the place leaving police officers to intervene to unlock the grille and to be allowed into the premise. Apparently this is the first case of copyright infringement involving T-shirts and the printing cartoons without permission that led to Sessions Court judge Hasbi Hasan to take into consideration that it was also the company's first offence. "The court hopes that it will not take advantage (of others' copyright) as intellectual property involved public interest and the country's interest. It should be more careful for the sake of the country's interest," the judge said, ordering the director to pay the imposed fine or eight months in jail. For each of the infringement copy, the wholesaler was fined RM2, 000, therefore bringing the accumulative total to RM300, 000 for which Yap eventually settled in full. DPP Nurul Ain Hamzah asked the court to impose a fine to reflect the nature of the offence, public interest and protection of intellectual property. Sessions Court judge Hasbi Hasan said the court had taken into consideration that it was the company’s first offence. “The court hopes that it will not take advantage (of others’ copyright) as intellectual property involved public interest and the country’s interest. It should be more careful for the sake of the country’s interest,” the judge said, ordering the director to pay the fine or risk eight months in jail. “For each of the infringement copy, it (the wholesaler) is fined RM2,000,” she said. Harjinder said Yap later paid the fine. This blog is created for the purposes of an assignment for the module Media Law MLL 2013 in the Faculty of Creative Multimedia, Multimedia University, Cyberjaya, Malaysia. All materials used here where does not belong to the blog owner is acknowledged and used solely for the purposes of education and research and hence under the doctrine of fair use. If you are the copyright owner of any of the materials posted and object to the usage, please inform me and I will take them down accordingly.

United States Court of Appeals for the Ninth Circuit

A&M Records, Inc. v. Napster, Inc.

October 2 2000

February 12 2001

239 F.3d 1004

Napster could be held liable for contributory and vicarious copyright infringement, affirming the District Court holding.

Mary M. Schroeder, Richard Paez, Robert R. Beezer

Robert R. Beezer

17 U.S.C. § 501, 17 U.S.C. §106

2.  Star Wars Vs Battlestar Galactica (Click for more detail)

The success of the first Star Wars film convinced Universal to quickly greenlight its own sci-fi property, Battlestar Galactica. Twentieth Century Fox felt that the new show was veering too closely to the Star Wars universe, and filed suit for copyright infringement. Universal moved for summary judgment on the ground that works were simply so dissimilar that no reasonable jury could find infringement. The Central District of California agreed and granted summary judgment, reasoning that the works were only similar on the most general level of intellectual abstraction, i.e., both were “a struggle between good and evil in space.” But the Ninth Circuit did not agree and held that there were many similarities between the works that “do in fact raise genuine issues of material fact as to whether only the Star Wars idea or the expression of that idea was copied.” Among the similarities cited by the Ninth Circuit were:

A war between “the galaxy’s democratic and totalitarian forces,” which are depicted in alternating sequences between the two camps, and which culminate in an air attack on the totalitarian headquarters, followed by an awards ceremony;

A friendly robot who is severely injured or destroyed by the totalitarian forces;

A “romance between the hero’s friend (the cynical fighter pilot) and the daughter of one of the leaders of the democratic forces;”

The destruction of “an entire planet, central to the existence of the democratic forces;”

A scene in a cantina or casino “in which musical entertainment is offered by bizarre, non-human creatures;” and “Space vehicles, although futuristic, are made to look used and old, contrary to the stereotypical sleek, new appearance of space age equipment.”

Galactica was produced in the wake of the success of the 1977 film Star Wars. And sci-fi author Jerry Pournelle, starring on a guest panel in This Week in Teck (episode 223), explains that “20th Century Fox sued Universal Studios (the studio behind Battlestar Galactica) for copyright infringement, claiming that it had stolen 34 distinct ideas from Star Wars.” Among them was a character named Skyler, a tad too close to Skywalker, and the possibility of airing with the title “Star Worlds”.

Universal Studios didn’t take this news lightly. “I agreed not to use certain effects including laser streaks from our guns,” said Galactica creator Glen Larson, who supposedly met producer Gary Kurtz to figure things out. “I always consider [the case]very unfair because we had met… and they were in agreement not to take any action.”
Furthermore, they “promptly countersued, claiming Star Wars had stolen ideas from the 1972 film Silent Running (the robot drones) and the Buck Rogers serials of the 1940s,” said Pournelle.

He goes on to say that after Fox was sued, he was paid $20,000 by Universal to show that Battlestar Gallactica and Star Wars were made from two different cloths.

In the end the case was decided in favour of Galactica two years later. Unfortunately, however, the original Battlestar Galactic” had been cancelled and cinemas were looking forward to seeing The Empire Strikes Back.

The case was remanded and then reportedly settled before further proceedings took place. By that time, Battlestar Galactica had already been canceled. Twentieth Century Fox Film Corp. v. MCA Inc., 715 F.2d 1327 (9th Cir. 1983).

3.  Apple vs Microsoft (Click For More Detail)

The battle between these tech giants started with a simple question: who invented the graphical user interface (GUI)? The company that controls the interface of the next major operating system will have the ability to set the standards for application software, so it’s unsurprising that Apple tried to stop Windows from becoming a major operating system.

It seemed that although Microsoft helped develop Macintosh, Jean-Louis Gassée, who had taken over from Steve Jobs at the time, refused to allow Microsoft to use their software. Bill Gates pressed on nonetheless, deciding to add in features of its own to early prototypes of the Macintosh. 

When Gassée noted the software, he was enraged. However, he didn’t want a lawsuit, and ended up agreeing to license the Mac’s visual displays. But Windows 2.0 turned out to be almost identical, and Gassée believed it to be a breach of contract, only having allowed their software to be used for 1.0 and not future versions.

So, without warning, Apple filed a lawsuit against Microsoft in 1988. Apple’s case included 189 contested visual displays that violated its copyright. This led to a six-year long battle.

In 1989, the court ruled that 179 of the 189 disputed displays were covered by the existing license. Furthermore, the other ten were not violations of Apple’s copyright due to the merger doctrine, where the idea–expression divide limits the scope of copyright protection by differentiating an idea from the manifestation of that idea.

Apple had agreed to license certain parts of its GUI to Microsoft for use in Windows 1.0, but when Microsoft made changes in Windows 2.0 adding overlapping windows and other features found in the Macintosh GUI, Apple filed suit. Apple added additional claims to the suit when Microsoft released Windows 3.0.

Apple claimed the "look and feel" of the Macintosh operating system, taken as a whole, was protected by copyright, and that each individual element of the interface (such as the existence of windows on the screen, the rectangular appearance of windows, windows could be resized, overlap, and have title bars) was not as important as all these elements taken together. After oral arguments, the court insisted on an analysis of specific GUI elements that Apple claimed were infringements. Apple listed 189 GUI elements; the court decided that 179 of these elements had been licensed to Microsoft in the Windows 1.0 agreement and most of the remaining 10 elements were not copyrightable—either they were unoriginal to Apple, or they were the only possible way of expressing a particular idea.

The district court ruled that it would require a standard of "virtual identity" between Windows and the Macintosh at trial in order for Apple to prove copyright infringement. Apple believed this to be too narrow of a standard and that a more broad "look and feel" was all that should be necessary at trial. As a result, both parties agreed that a jury trial was unnecessary given the rulings, and Apple filed an appeal to the Ninth Circuit Court of Appeals in order to have the district court's characterization overruled.

After the district court ruled in favor of Microsoft, Apple appealed the decision arguing that the district court only considered infringements on the individual elements of Apple's GUI, rather than the interface as a whole. The appeals court almost entirely affirmed the ruling of the district court, establishing that, "almost all the similarities spring either from the license or from basic ideas and their obvious expression... illicit copying could occur only if the works as a whole are virtually identical."

 However, the circuit court did reverse the district court's decision not to award attorney's fees to Microsoft, clarifying and sending the case back to the district court to resolve the issue.

Citing Brown Bag Software v. Symantec Corp., the circuit court dissected the GUI in order to separate expression from ideas (as expression, but not ideas, are covered by copyright law).

The court outlined five ideas that it identified as basic to a GUI desktop: windows, icon images of office items, manipulations of icons, menus, and the opening and closing of objects. The court established that Apple could not make copyright claims based on these ideas and could only make claims on the precise expression of them.

The court also pointed out that many of Apple's claims fail on an originality basis. Apple admittedly licensed many of its representations from Xerox, and copyright protection only extends to original expression. Apple returned to its "complete look and feel" argument, stating that while the individual components were not original, the complete GUI was. The court rejected these arguments because the parts were not original.

The lawsuit was decided in Microsoft’s favor on August 24, 1993.

4. James Dyson vs Hoover (Click For More Detail)

What has made Dyson so successful is the use of a bagless vacuum cleaner which uses two cyclones. One removes small particles while the other collects larger items. This is the patented technology that bitter rival Hoover infringed.

According to Dyson, before him, nobody in the field had thought to sell a bagless vacuum cleaner. However, Alberto Bertali, managing director of Hoover European Appliances Group, claimed that the Tripple Vortex “ recirculated dusty air between three cyclones and did not filter it.”

A counterclaim that the Dual Cyclone’s technology was “nothing that was not generally known within the industry,” was dismissed by the High Court.

Unfortunately for them the High Court ruled that Hoover had intentionally copied the technology at the heart of Dyson’s Dual Cyclone vacuum cleaner. Dyson said: “Their claims that the Triple Vortex is different were shown to be completely false. Hoover showed no interest in the technology when we were looking for backers.

Then they rubbished it when we brought out the bagless cleaner, insisting that bags are best. Finally they came out with a blatant copy.”

The case centred on a patent taken out in June 1980 by Mr Dyson. It was the first of many patents taken out after 1978 when Mr Dyson became frustrated with a Hoover Junior and its cloth bag. While doing his cleaning, Mr Dyson was "struck by its inefficiency". He then replaced the bag in his Hoover Junior with a miniature cardboard cyclone made airtight with tape. It worked and he had made a crude bagless vacuum cleaner on a cyclonic principle.

The breakthrough that ensured his success came when he combined two cyclones. The inner conical cyclone removed small particles while the outer cylindrical one collected larger items. It was the patent covering this cyclone series that Hoover infringed. Mr Dyson told the judge that before his machine, nobody in the field had commercially proposed or sold a bagless vacuum cleaner. Alberto Bertali, managing director of Hoover European Appliances Group, said the judgment was a setback.

He repeated the Hoover claim that the Triple Vortex recirculated dusty air between three cyclones and did not filter it, therefore avoiding any infringement of the Dyson patent. He said: "We were looking for a much stricter interpretation of the patent."

The breakthrough that ensured his success came when he combined two cyclones. The inner conical cyclone removed small particles while the outer cylindrical one collected larger items. It was the patent covering this cyclone series that Hoover infringed. Mr Dyson told the judge that before his machine, nobody in the field had commercially proposed or sold a bagless vacuum cleaner.

Alberto Bertali, managing director of Hoover European Appliances Group, said the judgment was a setback. He repeated the Hoover claim that the Triple Vortex recirculated dusty air between three cyclones and did not filter it, therefore avoiding any infringement of the Dyson patent.

But Dyson failed to stop Hoover using the “Vortex” trademark on its bagless cleaners.

5. Apple vs Google (Click For More Detail)

Apple is no stranger to court, especially when it comes to Google. After all, there are several companies that are making phones using Google’s Android software. Steve Jobs repeatedly called the Android a “stolen product. I’m willing to go thermonuclear war on this.”

Apparently things got so heated between Apple and Google that former Google CEO (and current chairman) Eric Schmidt stepped down from his position on Apple’s Board of Directors.

In 2010, Apple sued Samsung. Google had to step in and help Samsung patly due to a ‘Mobile Application Distribution Agreement’. A Google lawyer revealed that the company agreed to “provide partial or full indemnity with regard to four patents.”

And in one of the highest-profile lawsuits in technology, Motorola sued Apple at the same time Samsung was taken to court. Motorola accused Apple of infringing several patents, which included how cellphones operated on a 3G network. On the other hand, Apple claimed that Motorola violated its patent to certain smartphone features.

The case was dismissed in 2012, the year that Google acquired Motorola, on grounds that neither company had sufficient evidence. In fact, frustrated judges have thrown the Apple vs Motorola out of court three times, telling them to solve their problems between themselves.

Although Apple hasn’t attacked Google, probably due to the fact that Google provides a variety of iOS software. Instead, the company chooses to go for the company selling Android devices, but it seem that the search giant is intent on defending Android.

It was only 16 May this year that Apple and Google released a joint statement saying that they have agreed to settle all patent litigation between them and that they will also “work together in some areas of patent reform”.

In a joint statement on Friday, the companies said the settlement does not include a cross license to their respective patents.

“Apple and Google have also agreed to work together in some areas of patent reform,” the statement said.

Apple and companies that make phones using Google’s Android software have filed dozens of such lawsuits against one another around the world to protect their technology. Apple co-founder Steve Jobs called Android a “stolen product.”

Google and Apple informed a federal appeals court in Washington that their cases against each other should be dismissed, according to filings on Friday. However, the deal does not apply to Apple’s litigation against Samsung Electronics Co Ltd.

Apple has battled Google and what once were the largest adopters of its Android mobile software, partly to try to curb the rapid expansion of the free, rival operating system.

But it has been unable to slow Android’s ascendancy, which is now installed on an estimated 80 percent of new phones sold every year. Motorola, the U.S. company that pioneered the mobile phone, no longer ranks among the biggest smartphone makers.

6. Gucci vs Guess (Click For More Detail)

In 2009 Gucci sued Guess for infringing on five Gucci trademarks, including the use of similar logos. This is perhaps unsurprising given that Guess has been subject to 12 copyright complaints over the last ten years. But they have successfully managed to resolve all previous situations almost immediately… until they messed with Gucci.

Guess used many of Gucci’s distinctive marks, including a green and red stripe used on handbags, the repeating, inverted GG pattern, and the company’s use of brown and beige colours, mostly used in conjunction with diamond shape patterns.

Of course, Gucci came out on top, but not in the way they had hoped for. Initially asking for $221m in damages, the judge told Gucci they were only entitled to an accounting of profits and limited the damages. In the end, Gucci only received $4.7m.

Guess was also barred from using most of their designs ever again, primarily the Quattro G patterns in brown and beige colours and the CRG stripe.

What went wrong? Gucci’s defence.

The judge concluded that “Over the years, Gucci has sent out hundreds of cease and desists letters to entities ranging from national companies such as Bebe, Juicy Couture, and Williams-Sonoma, all the way to small-time infringers, such as a counterfeiter working out of her Los Angeles apartment and a rabbi in New York, who they suspected might sell counterfeit Gucci products to benefit his synagogue.” When it came to Guess, they waited because the company was facing budgetary concerns due to counterfeiters.

This marks Guess's second victory against Gucci so far. However, in 2012, a New York court ruled that Guess was guilty of copying four of the five trademarked logos Gucci addressed in its claim. According to the judge's decision in that case, the logos in question were the following:

1) the green-red-green Stripe mark
2) the repeating GG pattern
3) the diamond motif trade dress, which is the repeating GG pattern with a pair of inverted Gs in each corner rendered in a brown/beige color combination,
4) the stylized G design mark
5) the script Gucci design mark

In a dramatic court case that involved tears and shady e-mails, Guess only ended up having to pay $4.7 million in damages, which was nothing compared to the $124 million Gucci was seeking and small change when you consider that Guess made nearly $2.7 billion in revenue in 2011. 

Two major points weakened Gucci's case and contributed to the small payout. First, the judge noted that Gucci could not have been ignorant of Guess's designs until it finally filed the case in 2009, especially since both brands had similar advertising budgets and stores near each other, often in the same mall. (Guess was founded in 1981 and started producing the designs in question around 1995.) And secondly, the judge ruled Guess had diluted Gucci's logos, not counterfeiting them, saying, "courts have uniformly restricted trademark counterfeiting claims to those situations where entire products have been copied stitch-for-stitch."

Furthermore, the company had failed to bring non-speculative evidence to court.

7. Rogers vs. Koons (Click For More Detail)

Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to create a set of statues based on the image.

Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by claiming fair use by parody.

The court found the similarities between the 2 images too close, and that a “typical person” would be able to recognize the copy. Koon’s defense was rejected under the argument that he could have used a more generic source to make the same statement without copying Rogers’ work. Koons was forced to pay a monetary settlement to Rodgers.

This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work?

It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward.

Art Rogers, a professional photographer, took a black and white photograph of a man and a woman with puppies in their arms to be used in greeting cards and other various types of merchandise. The photograph was entitled "Puppies". When Jeff Koons, a famous artist, saw the photograph, he decided to create a sculpture which would be based on the photograph to be readied for an art show. Koons then removed the copyright notice from the picture and gave it to his assistants to begin modeling the picture for a sculpture.

According to court reports, Koons asked his assists to copy as much detail as possible from the photographs. The only changes that were made during the transition were larger noses on the puppies, their fur was made blue, and the man and woman were given flowers in their hair. The sculpture was named "String of Puppies" and became a success for Jeff Koons, who was able to sell three of the statues for $367,000.

You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist?

8. The Associated Press vs. Fairey (Click For More Detail)

Famous street artist Shephard Fairey created the Hope poster during President Obama’s first run for presidential election in 2008. The design rapidly became a symbol for Obama’s campaign, technically independent of the campaign but with its approval.

In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia with the AP demanding compensation for its use in Fairey’s work. Fairey responded with the defense of fair use, claiming his work didn’t reduce the value of the original photograph.

The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.

Though there wasn’t a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It’s unlikely that Garcia’s work could have ever reached the level of fame it did, if not for Fairey’s poster. Garcia himself stated he was “so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had,” but still had a problem with the fact that Fairey took the image without permission and without credit for it’s originator.

Credit, credit, credit! On 99designs you cannot use licensed work but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source.

Mr. Fairey, who sued The Associated Press in 2009 as it began to accuse him of copyright infringement for using one of its photographs as the basis for the poster, said that he did not appropriate any copyrightable material and that his use of the photograph, which showed Mr. Obama looking up pensively, constituted fair use under copyright law.

Last year Mr. Fairey admitted that he had misstated which A.P. photo he had used for the Obama image and that he had submitted false images and deleted others to conceal his actions, leading to a criminal investigation in addition to the civil case. Mr. Fairey originally said that he had used a photograph from an April 27, 2006, event at the National Press Club in Washington, where Mr. Obama was seated next to the actor George Clooney. Instead, the photograph he used was from the same event, but was a solo image of Mr. Obama’s head. The photograph was taken by Mannie Garcia for The A.P.

Mr. Fairey said that he had initially believed that The A.P. was wrong about which photo he had used, but later realized that the agency was right.

In settling the civil lawsuit, “The A.P. and Mr. Fairey have agreed that neither side surrenders its view of the law,” The A.P. said in a statement on Wednesday. “Mr. Fairey has agreed that he will not use another A.P. photo in his work without obtaining a license from The A.P. The two sides have also agreed to work together going forward with the ‘Hope’ image and share the rights to make the posters and merchandise bearing the ‘Hope’ image and to collaborate on a series of images that Fairey will create based on A.P. photographs.” The statement added that the two sides had agreed to “financial terms that will remain confidential.”

In a statement released by The A.P., Mr. Fairey said: “I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images.” Contacted through his publicist, Mr. Fairey declined to say anything more.

A separate copyright infringement lawsuit against Obey Clothing, which makes T-shirts and other apparel with the ‘Hope’ image, has not been settled and remains in court, The A.P. said.

Because of the issues at stake and the high visibility of the parties involved, the case had shined a spotlight on the tricky legal issues surrounding the fair-use exceptions to copyright protections. One of the central questions was whether Mr. Fairey’s creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama’s campaign, constituted a “transformative” use of the photograph, a use that is allowed under the law so that creative expression is not stifled.

Mr. Fairey, 40, has become one of the best-known practitioners of a guerrilla-style street art that emerged from the graffiti scene but has expanded well beyond paint to include a wide variety of techniques and materials. Mr. Fairey made his name plastering buildings with fake-advertising stickers and posters showing an ominous, abstracted image of the wrestler André the Giant along with the word “Obey.”

He decided to create the “Hope” poster after encouragement by the Obama campaign, which welcomed it but never officially adopted it because of the very copyright concerns that later erupted. Mr. Fairey has maintained that he has never personally profited from sales of the image, a contention The A.P. has disputed.

A collaged work made by Mr. Fairey based on the poster was acquired in early 2009 by the National Portrait Gallery in Washington, part of the Smithsonian Institution, and is now in its permanent collection, along with portraits of George Washington by Gilbert Stuart, and Richard M. Nixon by Norman Rockwell.

9.  Modern Dog Design vs. Target Corporation (Click For More Detail)

Seattle design firm Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011.

TBD. There hasn’t been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue.

The Modern Dog case has brought to light a question burning in the mind of many designers and artists — what happens if a major corporation with many more resources than me, utilizes my artwork for profit?

Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it’s turning into a very extreme situation for them. We’ll have to keep an eye out for how this progressed and continues to change the conversation around this issue.

Always defend your designs. Regardless of who you’re going up against if you think your design is in the right, then make it known.

Modern Dog’s case is as follows. They claim that Disney and Target used their design in a tee shirt they were selling, and also featured photos of the tee shirt on their web site. Their claim is against Target and Disney making unauthorized copies of the artwork for use on shirts. The substantial part here, is that Modern Dog claims Disney and Target had access to their book, and purposefully stole the image for their own use. They claim specifically, that those at Disney used Amazon’s “look inside” feature on the book, and took the image from there.

They also claim that the book had an explicit copyright notice, and that Disney and Target both removed said copyright notice to attempt to circumvent the copyright system. This is a bit of a silly claim, as we all know that under current US copyright law, anything is copyrighted once it’s in a fixed medium, such as this drawing, and doesn’t matter whether they had put a copyright notice or not. Furthermore, they weren’t actually circumventing anything, as again, the copyright notice isn’t mandatory any longer.

Disney and Target’s defense was not explicitly stated anywhere, though I can think of a possible defense that they could use. A tee shirt is obviously a useful article, and as we all know, covered under the useful articles section of copyright. Where this falls short though, is the fact that while the useful part of a useful article isn’t covered under copyright, the design here serves no purpose, and is covered separately under copyright law. This leaves Target and Disney in a bad place as far as a case against infringement.

All in all, if you take a look at the two images, it’s clear that Target and Disney took the image, as certain parts of the original work are copied exactly, down to the signature name below the drawing. To make an irrefutable claim, Modern Dog will have to show that Disney and Target did actually look at their design when making the tee shirt. Modern Dog went as far as to say that that their design was well available at the time that Disney and Target made their design. This will ultimately come down to the court officials, and their judgement of whether this is sufficient evidence for proving that Disney and Target did in fact take the design from Modern Dog’s book.

10.  Upin & Ipin Tee Printing Cases (Click For More Detail)

A garment wholesaler has been fined RM300,000 for having 150 T-shirts with the cartoon characters “Upin & Ipin” without permission from its copyright owner.
Wholesaler Fook Tai Sdn Bhd, who was represented by its director Yap Kien Sing, 49, was slapped with the summons case in a Sessions Court (Intellectual Property) yesterday.
The wholesaler pleaded guilty to owning the round neck T-shirts when its copyright belonged to Les’ Copaque Production Sdn Bhd at its premise in Lorong Haji Taib 4, Jalan Raja Laut, at about 5.30pm on May 22, 2009.
According to the facts of the case, an enforcement team from the Domestic Trade, Co-operatives and Consumerism Ministry had raided the premises on that day with a search warrant. However, Yap failed to open the grille and left the place.

It was only when the team sought help from the police that Yap unlocked the grille and allowed them to enter the premises.
This is the first case of copyright infringement involving T-shirts and the printing of such cartoons.
Pleading for leniency, his lawyer Harjinder Singh Sandhu said the prosecution had in a letter dated July 26, stated it had no objection for a lower fine if Yap admitted guilt on behalf of the company.

The wholesaler's director Yap Kien Sing, who faced a summons case in the Sessions Courts last Friday pleaded guilty to owning the T-shirts without seeking permission with owner Les' Copaque Production Sdn Bhd.

Reportedly an enforcement team from the Domestic Trade, Co-operatives and Consumerism Ministry raided the alleged premises with a search warrant. However, Yap failed to open the grille and left the place leaving police officers to intervene to unlock the grille and to be allowed into the premise.

Apparently this is the first case of copyright infringement involving T-shirts and the printing cartoons without permission that led to Sessions Court judge Hasbi Hasan to take into consideration that it was also the company's first offence.

"The court hopes that it will not take advantage (of others' copyright) as intellectual property involved public interest and the country's interest. It should be more careful for the sake of the country's interest," the judge said, ordering the director to pay the imposed fine or eight months in jail.

For each of the infringement copy, the wholesaler was fined RM2, 000, therefore bringing the accumulative total to RM300, 000 for which Yap eventually settled in full.

DPP Nurul Ain Hamzah asked the court to impose a fine to reflect the nature of the offence, public interest and protection of intellectual property.
Sessions Court judge Hasbi Hasan said the court had taken into consideration that it was the company’s first offence.

“The court hopes that it will not take advantage (of others’ copyright) as intellectual property involved public interest and the country’s interest. It should be more careful for the sake of the country’s interest,” the judge said, ordering the director to pay the fine or risk eight months in jail. “For each of the infringement copy, it (the wholesaler) is fined RM2,000,” she said.
Harjinder said Yap later paid the fine.

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