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The Southern District of New York recently resolved a question that neither the Southern District nor the Second Circuit had ever squarely faced: Can the lawful owner of an art object create and post a photograph of that object in connection with the sale of the object through an online platform such as eBay, without the permission of the owner of copyright in the object? The sale of the object is clearly permitted under the first sale doctrine, codified at §109(a) of the Copyright Act, but by its terms §109(a) only creates an affirmative defense to the distribution of the physical object itself: “the owner of a particular copy … lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” The statute does not allow the making of a reproduction or a derivative work, such as a photo, or the display or distribution of such an image, and indeed courts (notably the Ninth Circuit) have sometimes found similar activities to be infringing.
By Susan M. Gerber and A. Patricia Campbell
Part One of a Two-Part Article
Congress is empowered to create a patent system to promote the useful arts, and it has enacted laws to create a patent system that encourages innovation. Balancing that power, however, the courts in recent years have tried to rein in the scope of the patent right by limiting the scope of patent-eligible subject matter.
By David L. Newman
An IPR might be more efficiently accomplished through arbitration than through a PTAB proceeding, so it should be considered by practitioners.
By Jeff Ginsberg and Hui Li
Obviousness-Type Double Patenting Does Not Invalidate Section 156 Patent Term Extension
Federal Circuit Holds Assignor Estoppel Does Not Apply in IPR Context
Federal Circuit Reverses District Court Holding of Patent Ineligibility of Computer Security Patent
By Marcus Harris and Ryan Burandt
This article discusses recovering damages for trademark infringement and various strategies for establishing those damages.