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Photographs on the Internet: Circuit Courts Examine Copyright Infringement
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.
The Ninth Circuit on Proving Vicarious Liability for Copyright Infringement
Vicarious Liability and Willfulness
In Erickson Productions, Inc.; Jim Erickson v. Kraig Rudinger Kast, No. 15-168801, D.C. No. 5:13-cv-05472-HRL (9th Cir. April 16, 2019), the defendant Kast had hired Only Websites, a website developer, to revamp the website of his business Atherton Trust. Early in the design process, Kast asked Only Websites to use one of Wells Fargo's websites as a model for the redevelopment project. According to the court, “Kast also stated in emails that he wanted to mimic Wells Fargo's website.” The Wells Fargo website contained photos that plaintiff Erickson had licensed to the financial institution.
Only Websites used three of Erickson's photos on the Atherton Trust developmental website without permission. The record does not indicate whether the developer did this unilaterally or at Kast's request. The circuit court decision reports that Kast knew of the photos at least as early as January 2011. He did not, however, order Only Websites to take them down until six months later, when he received a cease and desist letter from plaintiff Erickson. While Kast ensured the photographs' prompt takedown at this juncture, he refused to pay any damages. Instead, Kast blamed the website developer for the unlicensed use of Erickson's copyrighted photographs.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
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Legal Possession: What Does It Mean?
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The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.