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In the context of a copyright case, a defendant's prior bad acts and prior conduct are more useful to a plaintiff than is typical in civil litigation.
In the context of a copyright case, a defendant’s prior bad acts and prior conduct are more useful to a plaintiff than is typical in civil litigation. In many instances, copyright infringement lawsuits are brought against defendants who have been sued before for infringement, or related misconduct, or who have been the subject of allegations or informal complaints, or who simply have experience in copyright matters. Under Federal Rule of Evidence 404(b), the use to which prior bad acts and conduct may be put by a plaintiff in a regular civil case is limited, and Federal Rule of Evidence 403 balances the probative value of the evidence against prejudice. In copyright cases, however, as a practical matter, the plaintiff has somewhat more latitude, and such evidence may serve several distinct objectives. A defendant’s history, whether related to the misconduct at issue or not, may be used by a savvy plaintiff in three ways: 1) to establish willfulness, and thus both enhance the statutory damages award and obtain attorneys’ fees under the Copyright Act; 2) to establish knowledge, and thereby make a case (where appropriate) for contributory infringement; and 3) as a basis for injunctive relief.
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Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
By Thomas Kjellberg and Robert W. Clarida
In Philpot v. Independent Journal Review, the Fourth Circuit found no fair use or copyright validity for a concert photographer's use of a photo of Ted Nugent as part of a collection.
USPTO Issues New Guidance On Rejecting Patent Claims for Obviousness
By Rob Maier
The United States Patent and Trademark Office recently published new guidance explaining the requirements for patent examiners to reject patent claims for obviousness in view of what was already known in the prior art.
“Holy Fair Use, Batman”: Copyright, Fair Use and the Dark Knight
By David G. Kim and Michael K. Friedland
The copyright for the original versions of Winnie the Pooh and Mickey Mouse have expired. Now, members of the public can create — and are busy creating — their own works based on these beloved characters. Suppose, though, we want to tell stories using Batman for which the copyright does not expire until 2035. We’ll review five hypothetical works inspired by the original Batman comic and analyze them under fair use.
Intellectual Property In Legal Tech: Lessons from Recent Cases
By Brian Mack, Kevin Keller and Olga V. Mack
As technology continues to permeate the legal industry, the significance of IP in safeguarding innovations, ensuring fair competition, and fostering a culture of creative legal solutions becomes paramount.
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