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Two April 2019 circuit court cases clarified copyright infringement of photographs on the Internet. In a case of first impression before the Ninth Circuit, the court opined on the degree of financial benefit required to prove vicarious liability for copyright infringement. In addition, the panel examined jury instructions regarding willfulness in the context of statutory damages. In the Fourth Circuit, the court examined how the infringer’s motives could affect the affirmative defense of fair use. Both cases serve as cautionary tales for those who takes photographs for their websites from the Internet without investigating copyright rights.
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Federal Circuit Analyzes Specification and Prosecution History Claim Language Usage
By Matthew Siegal
University of Massachusetts v. L’Oréal
Absent an express disclaimer or special definition of how a term is to be interpreted, it can be frustrating to get a court to reject the plain and ordinary meaning of claim language read in a vacuum, based on the subtleties of how a term is used in a patent or its prosecution history.
One Banana, Two Banana: Can a Banana Taped to a Wall Be Copyright Protected Art?
By Robert W. Clarida and Thomas Kjellberg
On July 7, 2022, the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, which began by posing the following question: “Can a banana taped to a wall be art?”
Digital Advertising: Customer Confusion and Trademark Infringement
By Stephen M. Kramarsky and John Millson
In the absence of a federal statutory scheme specifically aimed at digital advertising practices, the courts have focused on consumer-facing issues covered by existing law, such as privacy, transparency, and deceptive or misleading advertising practices. But digital advertising technology can also present new challenges in copyright and trademark protection.
By Stan Soocher
How far back from accrual of a claim may a plaintiff reach for copyright damages?
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