Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: copyright law

Copyright law, case P 31/07

October 28th, 2009, Tomasz Rychlicki

A person acting without the authorization of the rightholder, sold in order to gain material benefits, a copy of a design of single-family house XENIA. The design was owned by the Project Studio Archipelag. The District Prosecutor’s Office qualified his actions as a criminal offense under article 117(1) and article 115(3) 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.

Art. 115. 1. Any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another shall be liable to a term of imprisonment of up to 3 years, restriction of freedom or a fine.
2. Any person who, without mentioning the creator’s name or pseudonym, discloses the work of another either in its original or in a derived form, or a performance, or who publicly distorts a work, a performance, a phonogram or videogram or a broadcast, shall be liable to the same penalty.
3. Any person who, with a view to making a material profit in a manner other than that specified in paragraph 1 or 2, infringes the rights of the author or neighboring rights within the meaning of Articles 16, 17, 18, 19 paragraph 1, art. 191, 86, 94 paragraph 4 or article 97 or without performing his duties as mentioned in article 193 paragraph 2, 20 paragraphs 1-4, 40 paragraph 1 or paragraph 2, shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.
(…)
Art. 117. 1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

The Regional Court in Warsaw filed a question of law to the Constitutional Tribunal. The Court asked whether article 115(3) of the ARNR satisfy the requirement of preciseness, because it does not precisely define what behaviors are penalized by this provision. The court noted that the construction of the aforementioned provision is deemed by the Polish doctrine of law as defective, because the phrase “in a manner other than (…), infringes the rights” is devoid of characteristic of criminal offenses, which in turn makes it impossible to identify what behaviors shall be punished. This is contrary to a fundamental principle of criminal law – nullum crimen sine lege, which is also included in the article 42(1) of the Constitution. The definition of a crime shall be strictly construed and shall not be extended by analogy.

Article 42
1. Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law
2. Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by statute – of counsel appointed by the court.
3. Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.

The Court also pointed out that the scope of criminal penalties set by provision of article 115(3) of the ARNR are in fact too broad and unduly limits the rights and freedoms. Furthermore, this provision is particularly generous to authors, performers, producers of phonograms and videograms and broadcasting organizations. Namely, any breach of their rights, creates criminal liability.

The Constitutional Tribunal in a decision of 21 October 2009, case file P 31/07, discontinued the proceedings because of the inadmissibility to issue a judgment. The decisions was based on the fact that the request contained defects in the form.

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

Copyright law, case I C 238/06

June 15th, 2009, Magdalena Gad

Such a conclusion stems from the sentence of the District Court in Tarnow of 20 December 2007 in re: Bochnia Independence Half-Marathon, case file I C 238/06.

Once upon a time… in the town of Bochnia, the so-called annual “Bochnia Independence Half-Marathon” used to take place. The event had been organized by the town and county authorities, in collaboration with the originator, one Zenon G., ever since year 2001. As the name indicates – the event’s primarily purpose was to celebrate the regained independence of the town of Bochnia and attracted a substantial amount of participants each and every year. The cooperation between the county and the “founding father” lasted for 4 happy years until it was broken off abruptly in 2005, due to a dispute that sparked over money. The authorities of Bochnia decided to organize the marathon on their own, without either the help or the permission of the originator. This understandably got the latter’s hackles up. The case ended up in court.

The route of the half-marathon IS an artistic work… The originator accused the county and the mayor of infringing his copyrights, claiming that both the initiative as well as the sole idea to organize the run, along with the manner in which the whole event was planned and arranged, met the prerequisites of an artistic work within the meaning of the polish copyright law, including the requirements of “creativity” and “individual character”.

The Court before which the case appeared, agreed with the Claimant’s theory and held that whenever talking about an artistic work within the meaning of Article 1 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 later amendments, “the entirety of features, in their original juxtaposition” should be taken into consideration. The Court emphasized that the fact that the commonly available elements had been used to create the work, does not necessarily mean that such work does not fall within the definition of an artistic work under the Article 1 of the AARNR. Although, as a matter of rule, such individual elements, in and of themselves, are never protected under the polish law, any and all compilations thereof do get protection so long the manner in which they’re segregated, arranged and presented demonstrates certain degree of originality and creativity. In the Court’s opinion the process of creating a work is a subjective one and is a “projection of the author’s imagination”. If the result of such process is original and unique enough (meaning it can be easily distinguished from any other results of human activity), then it shall be protected by law as an artistic work. This happens every time we deal with a specific configuration of elements, particularly relevant and accurate when juxtaposed with the intended result, where the author uses his unbound discretion to select and arrange such elements. To apply this to the case at hand, the Claimant’s idea to organize the half-marathon to celebrate the town’s Independence Day along with a scrutine preparation of the marathon race plan so as to obtain a special certificate of the Polish Athletics Association, meet the requirements of an artistic work, as understood by the Act. The fact that similar race events had been organized by the town of Bochnia long before 2001 remained without any effect on the Court’s conclusion.

In particular the Claimant prepared the race plan independently, selected the respective streets of the city in such a way that the whole race plan would constitute an entirety, had a proper paving, that is a hardened one, and so that there were no substantial differences in route gradient. The race plan should take account of the conditioning of the terrain, routes of public transportation and additionally the length of the route should equal half the length of the actual marathon. Moreover, the Claimant saw to it that the race plan be certified and the result, which the participants of the race would likely achieve, could be comparable to those achieved in other like races in the country. The race plan has been recorded in the form of a map with the marathon route marked on it and the race description attached. To plan the route in such, and not other, way determines its originality and creativity, since no one has ever before drew the route of the Bochnia race in such topographic layout.

Additionally, the Court pointed to the new categories of the participants (teachers and persons with disabilities), in comparison to those of the Bochnia races that were organized before 2001, highlighting at the same time that “the requirement of novelty is not an inevitable feature of an artistic work”. The Court rejected the argument that any other person could prepare the race plan of the said half-marathon and reiterated, after the Supreme Court, that “the possibility of achieving analogical results by two different authors does not suffice to deprive a particular act of creativity, of the individual character.”

To conclude, the District Court in Tarnow held that by organizing the “Bochnia Independence Half-Marathon” against the will of the originator and using the race plan prepared by him, the Respondents infringed upon the latter’s copyrights. Hence, the Claimant was entitled to the protection of the polish copyright law. In the Court’s opinion the Respondents should have never free ridden on someone else’s creative efforts and should have come up with their own idea and race plan.

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

Copyright law, case II CR 244/71

April 29th, 2009, Tomasz Rychlicki

The Polish Supreme Court has repeatedly indicated that the copyrighted can be any work, if – at least in its form – it shows some elements of creativity, even the minimum. See for instance a judgement of the Supreme Court of 31 March 1953, case file II C 834/52. As a subject of copyright law have been considered health and safety instructions – judgement of the Supreme Court of 23 July 1971, case file II CR 244/71, unpublished, instructions for operating a machine – judgement of the Supreme Court of 25 April 1969, case file I CR 76/69, published at OSNCP 1970, No. 1, item 15, train timetables, cookbooks, patterns and forms – judgement of the Supreme Court of 8 November 1932, Zb OSN 1933, poz.7.

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

Trade mark law, case VI SA/Wa 2284/08

April 20th, 2009, Tomasz Rychlicki

In 1990 Zygmunt Piotrowski, well-know Polish graphic artist, created the logotype that depicted the porch with columns and attic finial of the Penderecki’s house in Luslawice with “heritage” inscription underneath. It was created for the Heritage Promotion of Music and Art company, whose founders were Elżbieta Penderecka and Janusz Pietkiewicz, later the director of the Polish National Opera. The logotype was adopted by the Heritage Films company that was founded in 1991 by Janusz Pietkiewicz and Lech Rywin after the withdrawal of Elżbieta Penderecka from Heritage Promotion of Music and Art company.

Heritage

At the request of Heritage Films, the Polish Patent Office in its decision of 27 June 2001, act signature Sp. 3/97 invalidated Heritage trade mark R-87806 belonging to the Piotrowski’s company. The Supreme Administrative Court in its decision of 14 December 2001, case file II SA 3446/01, confirmed the decision of the PPO, and dismissed the cassation complaint. The SAC clearly stated that the English word “heritage” is not a generic term for the services it was registered for, nor does it inform about its properties, quality or usefulness. Therefore “heritage” word can be used as a trade mark. It is not widely known or used in the market in order to identify such services as impresario and management consultancy services, the recruitment and placement of people for work for orchestra, soloists and artists of various disciplines of art. However the court held the the company name could be an obstacle to grant the rights of protection for a trade mark. It was unclear for the SAC why the PPO’s decision lacks the explanation as to why the picture of the porch with the HERITAGE inscription makes the right to the company name (which was existing from 1991) impossible to be applicable as grounds for the invalidation. If the reason would be the recognition of HERITAGE word to be protected by copyright law as the title, it should be better clarified. It was more necessary for the Court because the title could benefit from the copyright protection “only in very exceptional circumstances”.

The case went back to the PPO. On 17 April 2002 the Polish Patent Office invalidated of the right of protection of HERITAGE trade mark R-87806. One more time Mr Piotrowski filed a complaint before the Supreme Administrative Court. The SAC in its judgment of 12 March 2003, act signature II SA 1867/02, ruled that in accordance with the general rules, in the event of a collision between company name (the firm) and trade mark that has been registered with the “later precedence”, the priority shall be given to the right that existed earlier.

A year later, the Polish Patent Office registered Heritage Films trade mark R-151966. Zygmunt Piotrowski has requested the invalidation proceedings argued that the Heritage Films trade mark infringes on his personal and economic rights afforded by the copyright law regulations. The PPO rejected the request claiming the word “heritage” is a common expression and regardless of its importance for the artist it is not eligible for the copyright protection. Piotrowski filed a complaint against this decision. The Voivodeship Administrative Court in Warsaw in its judgment of 15 April 2009 case file VI SA/Wa 2284/08 ruled that the word “heritage” has no distinctive character and may be registered only in composition with some other description. And because it is not a subject of copyright protection the request had to be dismissed. Zygmunt Piotrowski has already announced he is going to file a cassation complaint.

Copyright law, copyright levies

March 10th, 2009, Tomasz Rychlicki

The Polish newspaper Rzeczpospolita published a recent article entitled “Authors rights contra the presumption of innocence“. It concerns a case between Polish company Euroimpex (one of the largest importers of photocopying equipment) and KOPIPOL (a collecting society) that was argued before the Court of Appeal in Wrocław. The Court asked the Polish Constitutional Tribunal to issue an opinion regarding legal questions and the interpretation of constitutionality of article 20(1)(ii) of of 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.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.

ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The money goes to two Polish collective societies which should transfer them to creators and publishers.

This reminds me about really funny story that happened to my friend. Piotr Waglowski has sent a letter to one of such organizations asking about the money he should receive for being an author and for publishing a book and a website. You may ask what was so hilarious about the answer he has received from KOPIPOL?

The fees and salaries collected by us (with a large resistance of those obliged to bear them) on behalf of the creators are relatively low. Given the very large number of entities qualified there is a risk of atomization of remuneration payable to entitled individuals.

All creators are equal, but some creators are more equal than others.

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

Copyright law, case V CSK 337/08

February 28th, 2009, Tomasz Rychlicki

The Supreme Court in its judgment of 27 February 2009, case file V CSK 337/08 ruled that the specification of essential terms of the contract as defined by the public procurement system can be deemed as copyrighted work.

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

Categories: Art. 1 ARNR | copyright law | copyrightable subject matter | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Court.

Copyright law, case I ACr 590/95

September 12th, 2008, Tomasz Rychlicki

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.

In Poland, we have judgment of the Appellate Court in Warsaw of 12 December 1995, case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32, where the Court held that benefits are generally a part of the net profit achieved as a result of copyright infringement. 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 later 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 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 regulations provided in the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with later amendments, define the entrepreneur very broadly. This definition will even cover such entities whose activity is not associated with a typical business. This argument was confirmed by the Supreme Court in its judgment of 7 April 2004case 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.

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.