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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 Peter Kidd
Iancu v. Brunetti
The Supreme Court held the bar against registration of immoral or scandalous marks “collided” with well-established free speech doctrine, namely, that laws disadvantaging speech based on the views expressed thereby violate the First Amendment.
By Charles A. Cartagena-Ortiz
The U.S. Supreme Court issued its long-awaited decision in Mission Product Holdings, Inc. v. Tempnology , ruling that a trademark licensee can retain its rights under a trademark license agreement that is rejected by the licensor as an executory contract in bankruptcy.
By Dorothy Leray and Jeff Ginsberg
Federal Circuit Affirms PTAB Decision Finding Lack of Written Description for Methods of Detection
Federal Circuit Dismisses Appeal of IPR Decision for Lack of Standing
By Karen Hoffman Lent and Kenneth Schwartz
The DOJ’s intervention, and the judge’s ultimate decision, has exposed tensions between the DOJ and FTC, and within the FTC itself, and public scrutiny is far from over as the case heads to the Ninth Circuit on appeal.