Is this the right angle?
Is this the best filter?
Do I have the legal right to post this content?
While the first two questions may be at the forefront of the mind of social media users, the third is arguably as important as the pressure to push content to followers mounts in a saturated market. It is all too easy to download, screen-shot or take a photo of an image and share it across many platforms, however, taking a laissez-faire attitude to copyright ownership can land social media users in hot water.
Last week, Xposure Photos UK LTD, an “international celebrity photo agency”, filed proceedings against Ms Kardashian in the Central District Court of California alleging that she had infringed its copyright in an image that was posted to her Instagram® account. The image in question had originally been licensed to The Daily Mail and contained a copyright notice “© XPOSUREPHOTOS.COM”. The version of the image that appeared on Ms Kardashian’s account did not contain this notice nor any acknowledgement of Xposure Photos. The unauthorised removal of the copyright notice attracts 17 US Code § 1202 -1203 which provide the basis for a civil action for such conduct. In addition to seeking an injunction to prevent Ms Kardashian from using the image, Xposure Photos is also seeking US$25,000 in statutory damages as well as any profits resulting from the infringement.
While this is arguably small change for Ms Kardashian (who allegedly earns up to US$250,000 for a sponsored post on her social media sites), once legal costs and any time invested in litigation or negotiating a settlement is considered, it seems a hefty price to pay for failing to obtain an appropriate licence from the copyright owner. It is a timely reminder to social media users to ensure that they have the appropriate rights to the content they intend to use.
- Xposure Photos UK Ltd v Khloe Kardashian et al, 2:17-CV-3088 (C.D. Cal).
By: Jaimie Wolbers
The new generic top-level domain (gTLD) .africa, a regional domain for users located in and out of the continent, has been officially validated by ICANN.
More than a decade after its other regional counterparts, such as .eu or .asia, the .africa gTLD has been the subject matter of a legal conundrum for years.
Indeed, a conflict between two operators had to be escalated up to U.S. courts before a final decision entrusted the management of the gTLD to a South African company, ZA Central Registry NPC.
This new gTLD will allow the African continent to seize the full potential of the internet revolution, on a continent where the mobile connectivity is now allowing bypassing the expensive copper wire infrastructure development.
The new .africa domain name extension is expected to lead the continent in its global effort to take part in the global information society and become a strategic place to invest.
Accessibility to the new domain name will be gradual: starting on 6 April 2017, a 60-day preliminary phase will allow trademark owners or companies to benefit from a priority right, as well as African countries that intend to protect certain emblematic names such as “Mount Kilimanjaro”. Then, starting on 2 June 2017, an Early Access Phase (EAP) will take place to prevent any hindrance or ransoming by ill-intentioned people.
The .africa TLD will finally be open to all on 4 July 2017, on a first-come/first-serve basis.
K&L Gates has more than 225 lawyers, including approximately 100 registered patent lawyers, agents, and technology specialists with technical or advanced science degrees – nearly 20 with Ph.D.s – who devote their practices to helping clients establish, enforce, and leverage their intellectual property rights worldwide.
We can thus highlight the pitfall to avoid, the topics on which to focus the attention and better defend and protect our clients’ intangible assets with regard to the opening of this new gTLD, on this emerging market.
In a ruling on 3 February 2017, the Court of Appeal in Białystok (Poland) considered an appeal by a defendant in a case concerning the right to combat unfair competition (case file I ACa 740/16). The dispute arose over the use by the defendant of the business name of the plaintiff when marketing services on the Internet.
The plaintiff’s business is debt recovery. Its activities involve acquiring debts from third parties or acting on behalf of creditors. The plaintiff became aware that the effectiveness of its activities was declining and believed the cause of this lay in the unlawful, in its opinion, activities of the defendant. The defendant conducts business involving consultancy services for debtors of banks and other institutions.
“Fashion has always been a repetition of ideas, but what makes it new is the way you put it together.” – Carolina Herrera
Welcome to the latest edition of Fashion Law, this edition touches on issues that demonstrate the impact of world events and technological changes on all businesses.
Fashion Law gives you the latest updates on legal issues affecting the fashion industry.
Please click here to read the Spring/Summer 2016 edition of Fashion Law.
Contact: Lisa Egan
In a precedential opinion issued en banc on Friday, October 7, 2016, the Federal Circuit overturned a panel decision, affirming and reinstating the district court’s judgment and the jury’s verdict. The majority opinion scrutinized and at times scolded the panel for taking on a role well outside of its appellate function and erroneously relying on extrinsic evidence to modify an agreed to and unappealed claim construction and hold claims invalid for obviousness. The majority characterized the appellate court’s function as “limited” and “requiring appropriate deference be applied to the review of fact findings.”
The U.S. Court of Appeals for the Federal Circuit recently implemented significant amendments to its Rules of Practice. The changes apply to all cases docked on or after April 1, 2016. In large part, the amendments were made to comport existing practices or requirements for electronic case filing with the Rules. Other changes, such as those relating to confidentiality, reflect a wholesale shift in Federal Circuit practice. This alert provides a brief overview of some of the more significant amendments. Please click here to read the full alert.
Following the provision of a recent Advocate General opinion, the Court of Justice of the European Union (CJEU) is expected to give further guidance on hyperlinking soon.
A dispute arose in the Netherlands between Sanoma Media Netherlands BV (and others) and GS Media in relation to the posting of website hyperlinks to third party sites which contained photographs the communication of which was not authorised by Sanoma and the other right holders.
Specifically, the Dutch Supreme Court has referred certain questions to the CJEU, asking whether
- hyperlinks to a freely accessible third party website which displays material without the consent of the copyright owner should be considered a “communication to the public” within the meaning of Art 3(1) of the Directive no. 2001/29 (“InfoSoc Directive”).
- In such circumstances, whether the following factors are relevant:
- the awareness of the hyperlinker of the failure of authorisation from the copyright owner, and/or
- the facilitation role played by the hyperlink on the accessibility of the material.Such conclusions were based on the grounds that the photographs were “freely accessible” to the general internet public on third party websites.
The CJEU decision on this case is much awaited, and it will be complementing the argument introduced by the Svensson case on hyperlinking. The decision in Svensson left some ambiguity as to whether it made a difference that works had been published on a site linked to without the copyright owner’s consent.
On April 7, 2016, Advocate General Wathelet released an opinion that hyperlinking to unauthorised content does not constitute an act of communication to the public under Article 3(1) of the InfoSoc Directive, because the intervention of the hyper linker is not essential to the making available of the copyright works to users. He also held that it is irrelevant whether the hyperlinker is aware that the linked content is unauthorised. In the AG’s view, the only criterion that mattered is whether the linked website is freely accessible or whether the hyperlink is used to circumvent a restriction put in place in order to limit access to a protected work. Only in the latter case would a hyperlink constitute a communication to the public.
The Federal Court of Australia has examined the issue of trade mark infringement by advertisers using competitors’ trade marks as Google AdWords. Advertisers need to ensure they do not use competitors’ marks as a ‘badge of origin’ to avoid trade mark infringement.
Veda Advantage Limited v Malouf Group Enterprises Pty Limited concerned Veda, a financial services company and Malouf, a credit repair business. A “VedaScore” is a number that summarises the information in a person’s credit file and is expressed as a number between 0 and 1200. In simple terms, the higher a person’s VedaScore, the better that person’s credit profile and the more likely that person will receive credit.
Malouf purchased a series of keywords that contained the word “veda”, so when a consumer typed “veda” into Google’s search engine, their search results would include sponsored ad links for Malouf’s services.
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.