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Archive for: copyright law

Copyright law, case I ACr 590/95

September 12th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 12 December 1995 case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32, held that benefits are generally a part of the net profit achieved as a result of copyright infringement. Looking at this issue from the comparative perspective, it is worth mentioning, that the No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) introduced changes into 17 U.S.C § 101. Definitions.

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

According to the Polish Court, the benefits are also the savings on expenses for copyright fees, if the copyright infringement was based on the use of work without a proper remuneration. Interesting approaches in two different jurisdictions. I just need to remind you that the Republic of Poland is not a common law country.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Unfair commercial practices, case DOK-6/2008

September 4th, 2008, Tomasz Rychlicki

In December 2005, the OCCP instituted antitrust proceedings against ZAiKS and the Polish Filmmakers Association (SFP), suspecting that – in order to maximise their profits – these organisations had made an agreement and fixed uniform charges for using audiovisual works and refused to negotiate their rates.

Penalties for a total of more than $ 1.2 million Polish złoty were imposed by the Office of Competition and Consumer Protection (UOKiK) on The Association of Authors (ZAiKS) and the Polish Filmmakers Association (APF) because of their agreement “to eliminate competition between them”.

UOKiK has found that since 2003, ZAiKS and SFP, seeking to guarantee itself the highest profits, have operated under the unlawful antitrust agreement. SFP and ZAiKS concluded an agreement which established a uniform, rigid rates for the use of audiovisual works (such as DVD movies) and refused to negotiate them – announced Malgorzata Krasnodębska-Tomkiel (the President of the UOKiK) at a press conference in Warsaw.

The decision of the President of the Office of Competition and Consumer Protection of 29 August 2008, case file DOK-6/2008 The official press release is available at uokik.gov.pl website, in Polish language.

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in article 23. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

Copyright law, case V CK 391/02

July 1st, 2008, Tomasz Rychlicki

The Supreme Court in its judgment of 7 November 2003 case file V CK 391/02, published in OSN 2004, No 12, item 203, ruled that introduction to the work, which was an academic textbook, non-substantive amendments, and changes that were merely stylistic or were made during proofreading, is not a manifestation of creative activity and does not justify the granting of the person who made such amendments, the status of a co-author.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I KZP 18/03

April 13th, 2008, Tomasz Rychlicki

The Polish Supreme Court in its resolution of 21 October 2003 case file I KZP 18/03 held that the license agreement is essentially the contractual relationship, which on the one hand determines the permissions granted to the licensee, on the other hand it creates the obligation to pay (the right to remuneration) to authorized party, i.e. a licensor. Therefore, the provision “against the terms and conditions of authorization” that is used in Article 116 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendment, refers only to the right or permission to distribute the work, that was granted the licensee.

Article 116. 1. Whoever, without authorization or against its terms and conditions, disseminates other persons’ work, artistic performance, phonogram, videogram or broadcast in the original or derivative
version shall be liable to a fine, restriction of liberty or imprisonment for up to 2 years.
2. If the offender commits the act specified in paragraph 1 above in order to gain material benefits,
he/she shall be liable to imprisonment for up to 3 years.
3. If the offender commits the offence specified in paragraph 1 above a regular source of income or organizes or manages a criminal activity as specified in paragraph 1, he/she shall be liable to imprisonment for 6 months to 5 years.
4. If the offender of the act specified in paragraph 1 above acts unintentionally, he/she shall be liable to a fine, restriction of liberty or imprisonment for up to one year.

The Court ruled that the provision “against the terms and conditions of authorization” does not apply to obligations under the license agreement (the right to remuneration or the obligation to provide financial statements). This understanding of the concept of the authorization also refers the statutory license that existed before the amdendments to the ARNR, but with the difference that the source of “authorization” was not provided in a contract but only by statute.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case VI ACa 1259/06

March 17th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 17 October 2007 case file VI ACa 1259/06 held that the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) 16 February 2007 published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with subsequent amendments, define an entrepreneur very broadly. According to the Court, this definition will even cover such entities whose activity is not associated with a typical business. Therefore, there was no reasons to deny such a status to the Polish Association od Writers and Composers (Stowarzyszenie Autorów – ZAiKS), a collecting society. This argument was confirmed by the Supreme Court in its judgment of 7 April 2004 case file III SK 22/04, published in OSNP 2005/3/46. The Court had no doubt that ZAiKS is active in providing professional services, in a structured and continuous manner, on its behalf, in the field of collective management of assigned copyrights, and thus it participates in business transactions. In applying the provisions of the APCC, “commercial purpose” as the last of the important parameters of economic activity means to obtain certain benefits for the operator of such activities. The use of such obtained benefits is, however, indifferent.

The European Court of Justice in its judgment of 27 March 1974 Case C-127/73 BRT v. SABAM published in ECR 1974, p. 313, ruled that the association of authors can be deemed as an entrepreneur, because an association whose object is to exploit and manage copyrights for gain “pursues a business activity consisting in the provision of services in respect of composers, authors, and publishers”.

It was undisputed that ZAiKS grants licenses for fee, and it also collects appropriate fees for the management of assigned rights. Therefore it has a measurable financial benefits from its activities. The fact that these benefits are fully allocated to the statutory objectives does not mean, in light of the abovementioned comments that ZAiKS work has nothing to do with the commercial objectives. The Court ruled that the Society of Authors ZAiKS being a non-profit organizations, is also a legal person providing services to the public, because it is organizing public access to creative activity, and licenses the use of this creativity. Therefore, ZAiKS is an entrepreneur as defined in the APCC.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

US case law on copyright

February 20th, 2008, Tomasz Rychlicki

Here is a short list of US copyright case law which I did couple of months ago based on books I learnt from. I’ll try to add links and comments later. I will also prepare a Wiki page about this subject matter.

I. Concept of Copyright
II. Copyrightable Subject Matter
III. Ownership
IV. Formalities
V. Exclusive Rights
VI. Fair Use
VII. Enforcement of Copyright
VIII. Federal Preemption of State Law
IX. International Dimensions of Copyright

I. CONCEPT OF COPYRIGHT

A. General Principles of the U.S. copyright

White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (U.S. 1908).
Mazer v. Stein, 347 U.S 201 (1954).
Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d Cir. 1995).
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
Blienstein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).

B. Patents and copyright

Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).

C. Trademarks and copyright

Fredrick Warne & Co. v. Book Sales, Inc., 481 F. Supp. 1191 (S.D.N.Y. 1979).

D. Chattels

Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993).

E. Term of copyright protection

Eldred v. Ashcroft, 537 U.S. 186 (2003).

F. Copyright to “orphan works”

Kahle v. Gonzales, 474 F.3d 665 (9th Cir. 2007).

G. Copyright misuse doctrine versus competition law

II. COPYRIGHTABLE SUBJECT MATTER

A. Original Works of Authorship

Feist Publication, Inc. v. Rural Telephone Service, 499 U.S. 340 (1991).
Magic Marketing v. Mailing Services Of Pittsburgh, 634 F. Supp. 769 (W.D.Pa. 1986).
Sebastian Int’l, Ind. v. Consumer Contacts (PTY) Ltd., 664 F. Supp.909 (D.N.J. 1987), rev’d on the other grounds, 847 F.2d 1093 (3d Cir. 1988).

B. The Ideal/Expression Dichotomy

Baker v. Selden, 101 U.S. 99 (1879).
Morrisey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967).
Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided court, 516 U.S 233 (1996).
American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir 1997).
Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1990).
Continental Casualty Co. v. Beardsley, 253 F. 2d 702 (2nd Cir.), certoriari denied, 358 U.S. 816 (1958).

C. Facts and Compilation

Feist Publication, Inc. v. Rural Telephone Service, 499 U.S. 340 (1991).
Rockford Map Publishers, Inc. v. Directory Services Co., 768 F.2d 145 (7th Cir. 1985).
Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990).
Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977).
Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970).
Atari Games Corp. v. Oman, 979 F.2d 242 (D.C.Cir. 1992).
Mathew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998).
West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986).
CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994).
BellSouth advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993).
Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992).
CDN .v Kapes, CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999).

D. Derivative Work

Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976).
Maljack Productions, Inc. v. UAV Corp., 964 F. Supp. 1416 (C.D. Cal. 1997).

E. Computer Programs

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).
Data General Corp. v. Grumman Systems, 825 F. Supp. 340 (D. Mass. 1993).
Lotus Development Corp. v. Borland International Inc., 49 F.3d 807, 34 USPQ2d 1014 (1st Cir. 1995).
Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).

F. Pictorial, Graphic and Sculptural work

Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3rd Cir. 1990)
Superior Form Builders, Inc v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1995), certoriari denied, 519 U.S. 809 (1996).
Satava v. Lovry, 323 F.3d 805 (9th Cir. 2003).

G. Separability

Keiseltein Cord v. accessories By pearl., Inc., 632 F.2d 989 (2d Cir. 1980).
Carol Banhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985).

H. Architectural Works

Demetriades v. Kaufmann, 680 F. Supp. 658 (S.D.N.Y. 1998).

I. Characters

Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
Warner Bros., Inc. v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954).
Anderson v. Stallone 11 U.S.P.Q.2D 1161 (C.D. Cal. 1989).
Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
Detectives Comics, Inc. v. Bruns Publishing, Inc., 111 F.2d 432 (2d Cir. 1940).
Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004).

J. TV formats

Barris/Fraser Enterprises v. Goodson-Todman Enterprise, 1988 U.S. Dist. LEXIS 146, 5 U.S.P.Q.2D (BNA) 1887 (S.D.NY. 1988).
CBS Broad., Inc. v. ABC, 2003 U.S. Dist. LEXIS 20258 (S.D.N.Y. 2003).

K. Sound recordings (sampling)

Grand Upright Music, Ltd v. Warner Brothers Records, Inc., 780 F.Supp. 182 (S.D.N.Y. 1991).
Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003).
Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004).

L. Government Works

County of Suffolk v. First Am. Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001).
Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791 (5th Cir. 2002).

M. Morality and public policy in granting copyright protection

Belcher v. Tarbox, 486 F.2d 1087 (9th Cir. 1973).
Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979).
Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174 (S.D.N.Y. 1998).
Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000).

N. Other

Open Source Yoga Unity v. Choudhury, 2005 U.S. Dist. LEXIS 10440, 74 U.S.P.Q.2D (BNA) 1434, Copy. L. Rep. (CCH) P28 (D. Cal. 2005).

III. OWNERSHIP

A. Initial Ownership

Adrien v. Southern Ocean County Chamber Of Commerce, 927 F.2d 132 (3d Cir. 1991).

B. Works Made For Hire

Community For Creative Non-Violence v. Reid, 490 U.S 730, 109 S. Ct 2166, 104 L. Ed 811 (1989).
Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992).
Carter v. Helmsley- Spear, Inc., 71 F.3d 77 (2d Cir. 1995), 116 U.S 1824 (1996).

C. Joint Works

Thomas v. Larson, 147 F.3d 195 (2d Cir. 1998).

D. Transfer of Copyright Ownership

Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990), cert denied, 498 U.S. 1103 (1991).
Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1998).
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998).
Fantasy, Inc v. Fogerty, 654 F. Supp. 1129 (N.D. Cal. 1987).

E. Renewals and Derivative Works

Stewart v. Abend, 495 U.S. 207, 110S. Ct. 1750, 109 L. Ed.2d 184 (1990).
Russell v. Price, 612 F.2d 1123 (9th Cir 1979).

IV. FORMALITIES

Estate Of Martin Luther King, Jr., Inc. v. CBS, Inc., 13 F. Supp. 2d 1347 (N.D.Ga. 1998).
Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991).
Hasbro Bradely, Inc. v. Sparkle Toys, Inc., 780 F.2d 189 (2d Cir.1985).

V. EXCLUSIVE RIGHTS UNDER COPYRIGHT

A. Right to make copies

Mathew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir 1998).
Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), cert. Denied, 330 U.S 851 (1947).
Dawson v. Hinshaw Music, Inc., 905 F.2d 731 (4th Cir.), cert. Denied, 498 U.S. 981 (1990) .
Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976).
Laureyssens v. Idea Group, Inc., 964 F.2d 131 (2d Cir. 1992).
Ringgold v. Black Entertainment T.V. Inc., 126 F.3d 70 (2d Cir. 1997).
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960).
Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971).
Educational Testing Services v. Katzman, 793 F.2d 533 (3d Cir. 1986).
Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936).
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
Steinberg v. Columbia Pictures Industries, 663 F. Supp. 706 (S.D.N.Y. 1987).
Kisch v. Ammirati & Puris, Inc., 657 F. Supp. 380 (S.D.N.Y. 1987).

B. Right to make Phonorecords

ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60 (2d Cir. 1996).
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

C. The Right to Prepare Derivative Works

Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986).
Micro Star, Inc v. Formgen, Inc., 154 F.3d 1107 (9th Cir. 1998).
Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).
Futuredontics, Inc. v. Applied Angramics, Inc., 45 U.S.P.Q.2d. 2005, 1997 U.S. Dist. LEXIS 22249 (C.D.Cal. 1998).
National Geographic Society v. Classified Geographic, Inc., 27 F. Supp. 655 (D.Mass. 1939).
Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976).
Wojnarowicz v. American Family Association, 745 F. Supp.130 (S.D.N.Y. 1990).
Grand Upright Music, Ltd v. Warner Brothers Records, Inc., 780 F.Supp. 182 (S.D.N.Y. 1991).

D. The Right to Distribute

Fawcett Publications, Inc v. Elliot Publishing Co., 46 F. Supp. 717 (S.D.N.Y. 1942).
Quality King Distributors, Inc. v. L’Anza Research International, Inc., 523 U.S. 135 (1998).

E. Right of Public Performance and Display

Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986).
Ocasek v. Hegglund, 116 F.R.D 154 (D. Wyo. 1987).

VI. FAIR USE

A. The application of the Fair Use Doctrine to the Creation of New Works

Campbell v. Acuff- Rose Music, Inc., 510 U.S. 569 (1994).
Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987).
Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).
Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).

B. The application of the Fair Use Doctrine to New Technologies of Copying and Dissemination

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc), certoriari denied, 117 S. Ct.1336 (1997).
American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995).
Storm Impact, Inc. v. Software of the Month Club, 13 F. Supp. 2d 782 (N.D. Ill.1997).
Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998).
Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., 180 F.3d 1072 (9th Cir. 1999).

VII. ENFORCEMENT OF COPYRIGHT

A. Damages

Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505 (9th Cir. 1985).
Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826 (9th Cir. 1985).
Engel v. Wild Oats, Inc., 644 F.Supp. 1089 (S.D.N.Y. 1986).
Felter v. Columbia Pictures Television, Inc., 118 S. Ct. 1279 (1998).

B. Costs and Attorney’s Fees

Fogerty v. Fantasy, Inc., 510 U.S 517 (1994).

C. Individual, Vicarious, and Contributory Liability

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).
A&M Records, Inc. v. Abdallah, 948 F. Supp. 1449 (C.D. Cal. 1996).
Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D.Cal. 1995).

D. Overenforcement: Copyright Misuse

Practice Management Information Corp. v. American Medical Association, 121 F.3d 516 (9th Cir. 1997).

VIII. FEDERAL PREEMPTION OF STATE LAW

International News Services v. Associated Press, 248 U.S. 215 (1918).
Sears, Roebuck & Co. v. Stiffel CO., 376 U.S. 225 (1964).
Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964).
Goldstein v. California, 412 U.S. 546 (1973).
Kewanee Oil Co. v. Bicron Corp., 416 U.S 470 (1974).
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989).
Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th Cir. 1986).
National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Smith v. Weinstein, 578 F. Supp. 1297 (S.D.N.Y. 1984).
Ehat v. Tanner, 780 F.2d 876 (10th Cir. 1985).
Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983), rev’d on other grounds, 471 U.S. 539 (1985).
Computer Associates International, Inc v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993).

IX. INTERNATIONAL DIMENSIONS OF COPYRIGHT

London Film Productions, Ltd. v. Intercontinental Communication, Inc., 580 F. Supp. 47 (S.D.N.Y. 1984).
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney & Co., 145 F.3d 481 (2d Cir. 1998).
Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998).
Subafilms, Ltd. v. MGM-Pathe’ Communications Co., 24 F.3d 1088 (9th Cir.) (en banc), certoriari denied, 513 U.S. 1001 (1994).
Update Art, Inc. v. Modiin Publishers, 843 F.2d 67 (2d Cir. 1998).
Curb v. MCA, 898 F. Supp. 586 (M.D. Tenn. 1995).
King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir. 1924).

Categories: copyright law | US law.

C-275/06, Promusicae

January 29th, 2008, Tomasz Rychlicki

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

Details about this case in the judgment C-275/06, Promusicae.

Copyright law, case III CZP 107/07

January 24th, 2008, Tomasz Rychlicki

The Supreme Court in its order of 6 December 2007 case file III CZP 107/07 held that a party who is not satisfied with the decision of the Copyright Commission, may bring a judicial action before the competent district court, within a period of 14 days of the notification of the said decision, only after the conclusion of the proceedings before the Copyright Commission. It is known as the so-called inadmissibility of the courts’ proceedings.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Categories: Art. 108 ARNR | collecting society | Copyright Commission | Polish Supreme Court | remuneration fee.

Copyright law, the allowed personal use

October 29th, 2007, Tomasz Rychlicki

In a short press release published on 26 October 2007 in “Czas Świecia” (regional supplement to Gazeta Wyborcza newspaper) Marek Rydzewski, the spokesperson for Regional Police Headquater in Świecie, issued a statement while answering to a student’s question about legality and responsibility for photocopying books:

- Copying whole textbooks without a permission from persons who have rights to such work (usually those are authors or publishes) is prohibited.

False. I do not want to educate Polish Police but I think I owe my English readers short explanation about Polish copyright (I think the proper term should be Author’s right since Civil law system differs a lot from English and US approach).

Some voices appears that there are legal grounds to introduce restrictions of maximum amount of pages to be allowed to photocopy from one book (…). It seems that such statements are not justifiable. Rules established in art. 23 of the Act of Authors rights. (…) did not introduce any limits for the amount of photocopied text.

J. Barta, R. Markiewicz, Prawo autorskie i prawa pokrewne, Zakamycze 2004, p. 67.
Additionally, Mr Marek Rydzewski said that:

Also, the law does not allow for downloading books in electronic form from the Internet, except for those which are made available for such actions.

False. There is no rule in Polish law that “prohibits” downloading books from the Internet! For all of you who are interested in the original text of this short article here is a scanned file, JPG, 675 KB. I’ll see if they publish corrections. In passing I would like to write my short statement. Myabe it will sound strange for You but I think that photocopying a full book “kills” it somehow.

Copyright law, case VI ACa 210/07

September 26th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 29 June 2007, case file VI ACa 210/07, published in the electronic database Legalis, held that photographs that were taken when a movie was shoot do not need to be treated as derivative works of an audiovisual work (the movie).

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Unfair competition, case DDK-61–16-06/JK

August 3rd, 2007, Tomasz Rychlicki

The President of the Office of Competition and Consumer Protection charged Vision Film Distribution and Warner Bros Poland of practices violating collective consumer interests and unfair competition delicts. Results of this proceedings are included in decisions no DDK-61–16-06/JK from May 25, 2007 and decision no DDK-5/2007 from January 31, 2007.

Access to public information, case V Ca 454/07

July 30th, 2007, Tomasz Rychlicki

Sergiusz Pawłowicz who was also the leading programmer of Janosik project, went the same administrative proceedings as ISOC Poland. See “Access to public information, case OSK 600/04“. At the final stage the Supreme Administrative Court rejected Sergiusz’s complaint on the decision of the Voivodeship Administrative Court case file II SAB/Wr 72/02, recognizing that the proper course shall be a civil action.

Sergiusz filed a complaint requesting the civil court to order ZUS to disclose specification of KSI MAIL protocol being public information. The Regional Court in Warszawa in its judgment of 8 December 2006 case file XVI C942/04 ruled that publication of the protocol that is used by Płatnik software will not affect in any way the integrity of safety of data sent by this software. Therefore all arguments raised by ZUS with regard to data security were unfounded. The Court also held that ZUS did not prove that the protocol of KSI MAIL is protected by copyrights that belongs to Prokom Software S.A. or whether Prokom received any patent covering this protocol.

As for the argument that ZUS’s obligations regarding confidentiality of information about technologies used in Płatnik and its source code, which resulted from the agreement between ZUS and Prokom, the court held that according to the obligation to disclose public information included in article 13 of the Act on the Informatization of Activities Undertaken by Entities Fulfilling Public Tasks (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), the provision of the agreement as a ius dispositivum, may not impose negative consequences on Sergiusz.

The court also held that the use of the requested public information and legal interest that Sergiusz and its legal representative derrived from the social interest was beyond the scope of the whole dispute. Simply, there is no need to prove legal interest when requesting the access to public information.

ZUS filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 23 April 2007 case file V Ca 454/07 rejected it. The Court held that the court of first instance provided deep and proper analysis of binding legal norms and its judgment was correctly applied.

Copyright law, case I ACa 668/06

July 18th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 May 2007, case file I ACa 668/06, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2008, No 12, item 39, p. 48, held that a trivial and simple language phrase being a short fragment of popular “Baśka” song and not being a citation or borrowed quote, that was included in the disputed advertisement, and at most being an inspiration and a reference to the distant associations, does not justify the assumption of copyright infringement. The particular freedom concerns the advertising market. Indeed, such activity because of its short forms and the need for articulated skills must operate by abbreviations, references to familiar themes, characters and situations. An advertising is also a trade statement of informational nature, so it enjoys the right to freedom of expression and freedom of information. Restrictions of these rights may occur only to the extent necessary, by third party interests. While preserving the principle of non-transferability of author’s personal (moral) rights, it is permitted to waive of the exercise of these rights by the creator, to third parties, including entrepreneurs.

April 22nd, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 March 2006, case file VI ACa 1012/05, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2007, No 12, item 36, p. 56, held that when it comes the legal protection of the author’s work it does not matter how the infringer came into the possession of the work, or how the work arrived to him, in particular, it does not matter that the work, which is the subject of the infringement came to the infringer as unsolicited correspondence sent electronically, the so-called spam. The protection is not only afforded to the well known creator, whose works are published in big numbers, but to anyone whose rights to a protected work have been infringed in any possible way, copyright law makes no distinctions in the field of protection depending on the value of the work and the recognition enjoyed by the author.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright case, IV NSA 2238/01

March 29th, 2007, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 25 April 2002, case file IV NSA 2238/01, published in MoP 2002, No. 12, p. 532, has denided the Board of the Society of the Polish Architects the right of action in a case of the infringement on the integrity of the architectural design/project.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Categories: Art. 78 ARNR | collecting society | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Administrative Court.

Copyright law, case IV CSK 303/06

March 24th, 2007, Tomasz Rychlicki

The Supreme Court in its judgment of 3 January 2007 case file IV CSK 303/06 ruled that the Copyright Commision should also resolve disputes relating to the conditions of agreement between a cable operator and the collecting society on the use of copyrighted works or performances. This conditions are inter alia the method of calculation and the amount of remuneration. The Court broadly interpreted the term “dispute about the conclusion of the agreement”. The SC held that the so-called inadmissibility of the courts’ proceedings appears only if a party or both parties (a cable operator and the collecting society) will request the Copyright Commission to decide on the agreement.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I CK 312/02

March 17th, 2007, Tomasz Rychlicki

The Supreme Court in a judgment of 3 December 2003, case file I CK 312/02, has denided the right of action to a collecting society that wanted to initiate a copyright suit in the name of a living person. The Court held that the collective management does not include protection and management of moral and personal rights of living persons, creators or authors. In this case, the Polish Society of Authors and Composers (ZAIKS) wanted to bring an action for the protection of personal rights of a living author who composed music/soundtrack for the movie.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Patent law, case Davoll v. Brown, 1 Woodb. & M. 53

February 15th, 2007, Tomasz Rychlicki

If you were ever wondering about the origin of this a little bit misleading term of “intellectual property”, you probably did some Internet research. The most popular resource is wikipedia.org of course. It will give you some help in this matter. The term “intellectual property” was used for the first time in 1845, by Judge Charles L. Woodbury’s in Davoll v. Brown, 1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414, PDF file.

Only thus can ingenuity and perseverance be encouraged to exert themselves in this way usefully to the community; and only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.

For all of you who are interested in this subject matter I added a link to the full text of this judgment. The case discussed patent law issues. I also edited the wikipedia post. If anynone of you have a copy of A. Nion’s book entitled “Droit civils des auteurs, artistes et inventeurs” I would appreciate if you contact me.

Categories: copyright law | patent law | US law.

Copyright law, III CSK 40/05

April 26th, 2006, Tomasz Rychlicki

The Supreme Court – Civil Chamber in it judgment of 13 January 2006, case file III CSK 40/05, published in the Supreme Court’s Bulletin of 2006, No 3, the “Wokanda” magazine of 2006, No 6, p. 6, the Review of Economic Legislation (in Polish: Przegląd Ustawodawstwa Gospodarczego) of 2006, No 7, p. 32, held that the expression of human intellectual activity which lacks adequate individuating characteristics, i.e. that it would distinguish it from other products of similar nature and purpose, cannot be regarded as a work that is a subject to copyright protection. The dependent copyright may arise if there already is – and simultaneously exists – the right to the “original/primary” work, which was creatively worked out by a person who claims the right to dependent copyright.

See also “Polish regulations on copyright” and “Polish case law on copyright“.