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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.
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By Stacey C. Kalamaras and Henry Kaskov
This article explores the options available to a client to value its trademarks during a financial crisis, to ensure one of the most valuable assets it owns can continue to work for the company and see it through the lean times.
By Jared Looper
Federal Treasury Enterprise Sojuzplodoimport v. Spirits International BV
What do the fall of the Soviet Union, a heist of trademark rights, and Stolichnaya vodka have in common? They are all key components of the Russian Federation’s efforts to reclaim its trademarks in Stolichnaya vodka.
By Laura O’Laughlin, Harriet Ho and Duy (Joey) Duong
As survey evidence has become increasingly common in litigation, it is important to remember that not all surveys are made the same. It’s important to be able to identify the right survey methodology for the matter at hand. Third in a series
By Jeff Ginsberg and Abhishek Bapna
Federal Circuit: ITC Did Not Err in Denying Non-Respondent’s Petition to Rescind Exclusion Order Based on Invalidity Grounds
Federal Circuit: District Court Did Not Err in Ruling that ‘Half-Liquid’ Is Indefinite
Federal Circuit: District Court Did Not Err In Allowing Jury to Determine Infringement Based on Products’ Compliance with Standard