Category: Entertainment & Arts

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Consider Fair Use Before Submitting Takedown Request
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Sydney Fashion Law Breakfast – Thursday 15 October
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Southern District of New York Court Parses ‘Fair Use’ in Fox News’ Copyright Infringement Dispute with Media Monitoring Service
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A bed Called ‘Nathalie’ – A Dispute Over Creative Designs Protected by Italian Copyright Law
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Is it Still Popcorn Time?
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Australian ISPs Ordered to Hand Over Customer Details in P2P Copyright Action
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International Design Update
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Do not use Audrey Hepburn’s Iconic Elements
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Australian Government Reveals Plan to Crackdown on Online Piracy – but not too Hard!
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Recording Trade Mark Licence Agreements in the Middle East

Consider Fair Use Before Submitting Takedown Request

The U.S. Digital Millennium Copyright Act (DMCA) has been a potent tool for combatting copyright infringement on the Internet. Section 512 shields Internet service providers from liability if they expeditiously remove content after copyright owners submit takedown requests notifying the ISP of infringing content. Last week, in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright owners must consider fair use before sending takedown notices, or they could face liability for damages.

This decision cautions copyright owners to take a closer look at infringing content and document their fair use analysis before submitting takedown requests. An intensive investigation is not required and the fair use analysis may not be correct, but the copyright owner must have a good faith belief that fair use does not apply.

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Sydney Fashion Law Breakfast – Thursday 15 October

How close is too close? Trends, inspirations and courts – where is the line between paying homage and knocking off someone else’s design?

K&L Gates invites you to our Fashion Law Breakfast on Thursday 15 October to explore the ins and outs of copying in the fashion industry, including tips on how to avoid getting into hot water and the legal options available to designers who discover that their creations have been copied. A panel of fashion industry and legal experts will discuss the role of trends in creating designs and address the difference between being inspired and being liable for copying.

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Southern District of New York Court Parses ‘Fair Use’ in Fox News’ Copyright Infringement Dispute with Media Monitoring Service

On 25 August 2015, the U.S. District Court for the Southern District of New York (SDNY) ruled that certain functions of the TVEyes media-monitoring service infringe Fox News’ copyrights in its programming content.

TVEyes is a for-profit, media-monitoring service with over 22,000 subscribers that indexes nearly all news-related television and radio content in a searchable database. TVEyes allows users to track the usage of words or phrases of interest and to view the transcripts and video clips of the portions of the television broadcast that use the search term. Subscribers may set ‘watch lists’ for terms to receive real time alerts when certain terms are used and search past broadcasts. TVEyes also provides subscribers with analytic data such as a segment’s Nielsen viewership rating, the frequency with which a term has been mentioned over a specified time period and the geographic markets and channels where a term is used. Additionally, TVEyes users may archive, indefinitely, video clips that appear in response to search queries on TVEyes’ server. Users can also email the video clip links to others, allowing the recipients of the link to view the video clip on TVEyes’ server, as well as download copies of identified digital video clips for offline use and permanent storage.

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A bed Called ‘Nathalie’ – A Dispute Over Creative Designs Protected by Italian Copyright Law

A recent judgment on 16 June  2015 (no. 7432/2015), saw the Court of Milan ascertain the difference between a shape trademark and an artistic shape classified as industrial design protected under copyright law.

The dispute concerned the use and the reproduction of the design of the renowned ‘Nathalie’ bed (the Design), which was created in the ‘70s by Italian designer and architect Vico Magistretti. Mr. Magistretti (and later his heirs) granted an exclusive licence of the Design to the plaintiff.

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Is it Still Popcorn Time?

On 31 August 2015 the Public Prosecutor’s Office at the Court of Genova (Italian Prosecutor) issued a sequestration order for copyright infringement against popular streaming software: Popcorn Time.

Popcorn Time (the Software) is open source software  which links users through a peer-to-peer network by allowing them to stream and watch movies or TV series. In other words, the Software does not allow users to download data from a server, but users can download files directly from different sources (i.e. other users).

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Australian ISPs Ordered to Hand Over Customer Details in P2P Copyright Action

Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317

In November 2014, IP Law Watch reported on attempts by the rights holder of the film Dallas Buyers Club to compel Australian ISPs to disclose the identities of BitTorrent users who allegedly shared copies of the film.

On 7 April 2015, Justice Perram of the Federal Court of Australia ruled in favour of Dallas Buyers Club LLC and Voltage Pictures LLC, ordering six ISPs to disclose the details of 4,726 customers.

The judgment has been widely reported in the Australian media as a landmark decision and a game changer in the battle regarding online piracy.  In fact, the kind of order granted by Justice Perram is far from revolutionary.  For many years, civil procedure rules at both state and federal levels have enabled a party to seek orders requiring a third party to produce documents or give evidence as to the identity of a prospective respondent.  There are decisions going back as far as the 1970s in which this kind of preliminary discovery order has been granted (see for example Exley v Wyong Shire Council (10 December 1976, Master Allen, unreported) and Stewart v Miller [1979] 2 NSWLR 128).

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International Design Update

New Members to the Hague System

The Hague Agreement concerning the International Deposit of Industrial Designs (Hague System) is administered by World Intellectual Property Organization (WIPO) and has been around for almost 100 years. It is a mechanism, similar to the Madrid Protocol System for trade marks, of registering an industrial design in several countries by means of a single application, filed in one language and with one set of fees. The Hague System produces the same effect of a grant of protection in each of the designated contracting countries as if the design had been registered directly with each national office, unless protection is refused by the national office.

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Do not use Audrey Hepburn’s Iconic Elements

That’s what the Court of Milan has stated on January 21, 2015 (judgment no.766/2015)!

This dispute originated with the use by an Italian company, Caleffi S.p.A. (Caleffi), of an image recalling the famous scene from ‘Breakfast at Tiffany’s’ in which the actress, well-dressed in black, wearing sunglasses and pearls, was staring into the window of Tiffany’s Fifth Avenue boutique. Caleffi was promoting the prize contest ‘The dream diamond’. Audrey Hepburn’s heirs sued Caleffi and brought before the Court of Milan (Court) an action for damages based on the claimed violation of article 10 of the Italian Civil Code, on the use of the images of a person, and article 96 of Italian Copyright Law, on the protection of portraits.\

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Australian Government Reveals Plan to Crackdown on Online Piracy – but not too Hard!

The Australian Government announced last week that it will implement measures proposed by Attorney General, George Brandis, and the Australian Minister for Communications, Malcolm Turnbull, to reduce “high levels of online copyright infringement”.

The announcement is timely – given the owners of the film Dallas Buyers Club issue of proceedings in the Federal Court of Australia in November, against five internet service providers (ISPs) including iiNet, seeking orders to have the ISPs disclose the identities of alleged pirates. Read More

Recording Trade Mark Licence Agreements in the Middle East

Many businesses operate in the Middle East through entities licensed to use their trade marks. These businesses should be aware that many Middle Eastern countries require that trade mark licence agreements are recorded with the respective Trade Mark Registers or other named authorities in these countries. Not recording a licence agreement could lead to monetary penalties being imposed on the licensee or an inability to enforce trade marks against third party infringers.

For example, Bahrain, Qatar, Saudi Arabia and the United Arab Emirates each have more or less equivalent provisions in which a trade mark licence agreement must be in writing, it cannot include unregistered trade marks and it has no legal effect against third parties unless it is recorded on the respective Trade Mark Registers (or other named authorities in these countries). Each of these countries has slightly different processes and requirements for seeking registration of a trade mark licence agreement. Read More

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