Tags: copyright, infringement, Lawyers Weekly, MA lawyers
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On April 28, 2016, Massachusetts Lawyers Weekly newspaper published the article titled “Ex-‘View’ co-host Hasselbeck survives copyright suit by author”. This article explains how Susan Hasset, author of “Living with Celiac Disease”, took Elisabeth Hasselbeck, author of “The G Free Diet” and “Deliciously G Free”, to court accusing her of violating copyright infringement. U.S. District court Judge George A. O’Toole Jr dismissed the case ruling that the similarities between both books were not pervasive enough.
MBBP Attorney’s Howard G. Zaharoff and Faith D. Kasparian are both quoted on the topic of copyright laws related to recipes. Howard explains that point that, “‘There are plenty of things you can borrow or steal that are perfectly lawful’ under copyright law.” Continuing on the topic of recipe infringement, Faith follows up by applauding the judge for drawing the line regarding creativity and additional functional directions for achieving a result.
Read the full article here.
Tags: innovation awards, SBANE, The Curadel Companies, watchrx
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The Smaller Business Association of New England announced this year’s Innovation Awards Finalists. MBBP would like to congratulate clients WatchRx and The Curadel Companies on advancing to the final round of this prestigious competition. We also have two additional clients, Sparkx Hockey and Applied BioMath, that reached the Semifinal round. Since 1986, the Innovation Awards recognizes companies that have transformed their innovative ideas into a product that delivers proven value to customer. Former winners have come from a variety of fields including technology, manufacturing, service, non-profit, and retail/distribution. The Finalists will present to judges on April 7th, 2016 and will be honored at The New England Innovation Awards Gala on May 12th at The Westin Hotel in Waltham, MA.
To learn more, visit the SBANE Innovation Awards webpage.
Tags: 2015, Intellectual Property, ip, patent, privacy, privacy shield, safe harbor, trademark
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2015 was another busy year in terms of intellectual property law, but luckily, MBBP has been carefully monitoring all of the important developments. There were many contenders for spots in our list, but only a select few could make the cut.
- Happy Birthday to All! – Marya v. Warner/Chappell Music, Inc.
- Google Books (Authors Guild v. Google, Inc.)
- Disparagement versus Free Speech: In re Tam
- Issue Preclusion & The TTAB: B&B Hardware, Inc. v. Hargis Indus., Inc.
- Patient Infringement Liability: Akamai Techs., Inc. v. Limelight Networks, Inc.
- Biosimilarity: Amgen v. Sandoz
- Patentability of Natural Phenomena: Ariosa Diagnostics, Inc. v. Sequenom, Inc.
- Computer Fraud & Abuse Act
- Safe Harbor Down, EU-US Privacy Shield Up
Tags: Contours of Copyright, copyright, Intellectual Property, music, musical composition
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It is axiomatic that copyrights do not protect words or short phrases. But how short is too short for copyright? 10 words? 5 words? 3 words? Consider Henny Youngman’s classic 4-word joke, “Take my wife … please.” Is that a copyrightable jocular expression, or an uncopyrightable short phrase (or, for you copyright pros, a merged idea)? The answer is important, not only to comedians, but also to epigrammatists, songwriters, poets … and anyone who wishes to include, in a work they are creating, word sequences they’ve seen used by another.
A recent case, William L. Roberts v. Stefan Kendal Gordy (U.S D.C., S.D. Florida 2015), provides helpful guidance, though not a definitive answer.
Discussion: The plaintiffs, Roberts et al., owned the musical composition Hustlin’, whose chorus consists of the repeated refrain “everyday I’m hustling.” The defendants, Gordy et al., had a hit song, Party Rock Anthem, which included the phrase “everyday I’m shuffling.” When the defendants began marketing their “shuffling” phrase on T-shirts and other merchandise, the plaintiffs sued, arguing that their copyright in the song included a copyright in the “hustlin’” refrain, and therefore they could prevent anyone from copying that refrain, whether in a similar song or standing alone on a garment.
The defendants disagreed, and the court sided with them. Yes, said the court, the plaintiff’s song was entitled to copyright protection. However, “copyright protection does not automatically extend to every component of a copyrighted work.” Rather, because “originality” is the sine qua non of copyright, and short phrases are common and unoriginal, the copyright in a work does not extend to individual short phrases (or, of course, single words) in the work. This doesn’t mean, the court explained, that the presence of “ordinary” phrases deprives a work of copyright protection; but it also doesn’t mean that the copyright umbrella shelters every word or phrase contained in a copyrighted work.
Or, as the court puts it: “The question presented … is not whether the lyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection. The question is whether the use of a three-word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”
To add insult to injury, the court also notes that the terms “hustling” and “hustlin’” were used in many earlier songs, and that the plaintiffs never asserted that the phrase “everyday I’m hustlin’” originated with them – which in itself could have killed their copyright claim (to be copyrightable, a work needn’t be novel, as in the patent sense of never before appearing anywhere, but does need to be original, in the copyright sense of having composed it oneself without copying from another). Finally, says the court, there is no substantial similarity between the original musical composition, containing the (uncopyrightable) phrase “everyday I’m hustlin’,” and the defendant’s T-shirts, containing the (uncopyrightable) phrase “everyday I’m shuffling.” In short, none of the plaintiff’s original expression was infringed by the defendant’s apparel.
An Interlude for Copyright Aficionados: There was nothing earthshaking about this decision, though it is interesting to read the court’s sampling of many short phrases that failed to win copyright protection, including: “so high” (2 words), “get it poppin’” (3 words), “fire in the hole” (4 words – uh-oh, Henny), “most personal sort of deodorant” (5 words), and “You Got the Right One, Uh-Huh” (5 words, plus an “Uh-Huh”). So, one might conclude, a half dozen words or more are probably the minimum required for copyrightability.
Perhaps the reason this court – and no court I’m aware of – has stated a bottom line number below which copyright cannot apply is that no one can be absolutely certain that a creative author couldn’t be original in even a handful of words. Let’s cheat, make up a word, and stick it in a short phrase: “She’s my joyzilla mama.” Four words – really 3 plus a mashup – which have never appeared before (a Google search more or less confirmed this). Can I use copyright law to prevent another person from using my original phrase in a song or on a T-shirt?
My answer is a definite “maybe.” The epigrammatist Ashley Brilliant has successfully registered – and once successfully asserted – copyrights in his epigrams, many of which are quite short (such as, “When all else fails … Eat” = 5 words). Poets and songwriters often feel that their short but creative phrasings are worthy of protection. So maybe we can’t state an absolute bottom line because we can’t guaranty that a brilliant writer or composer won’t dash our assumptions.
Conclusion. Still, it’s hard to imagine anyone successfully claiming copyright in any 2- or even 3-word (real words, not coined) phrase – if for no other reason than given the relatively small number of meaningful 2- and 3-word phrases, and the exhaustive output of English speakers, each of those short phrases would have already appeared so frequently that no one using such a phrase could convincingly assert it originated with them, or that they should have the right to keep anyone else from using it.
So, unlike Roger Bannister running a mile under 4 minutes, the possibility of someone writing a copyrightable phrase of under 4 words (probably 5, possibly 6) should stand the test of time.
For more information on this topic, please contact Howard Zaharoff.
Tags: Advertising, digital media, Forge Worldwide, Interactions, LogMeIn, Marketing, MITX, MITX Awards, Mullen, Nanigans, technology, yottaa
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On Wednesday, April 8th, the Massachusetts Innovation & Technology Exchange announced the finalists for the 2015 MITX Awards. The MITX Awards is the largest and most prestigious annual awards competition in the country for digital marketing and technology innovation, bringing together 1,200 of the best and brightest minds in the digital media, marketing and technology industry. The awards ceremony will take place on Thursday, May 14th, 2015 at the Marriott Copley.
Among this year’s finalists, are several MBBP clients:
Congratulations to all! To see the full list of finalists, please visit MITX.
Tags: Comark, innovation awards, OYO Sports, SBANE
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The Smaller Business Association of New England recently announced this year’s Innovation Awards Finalists. MBBP would like to congratulate clients OYO Sports and Comark on advancing to the final stage of this prestigious competition. Innovation is at the heart of economic prosperity and SBANE continues to recognize those companies and organizations that have transformed their innovative ideas into a product or service that delivers proven value to customers. Former winners come from varying fields such as technology, manufacturing, service (both for profit and not for profit), and retail / distribution. Winners and Finalists will be honored at the “Evening of Innovation” Gala Dinner on May 6, 2015 at the Westin Hotel in Waltham, MA.
To learn more about all of the Finalists of the 2015 Innovation Awards via SBANE.
Tags: console developer, Demiurge Studios, Marvel Puzzle Quest, mobile apps, mobile developer, SEGA
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MBBP Client Demiurge Studios, an independent game developer out of Cambridge, Massachusetts, has been acquired by SEGA Networks, a multinational video game developer, publisher, and hardware development company. Founded in 2002, Demiurge Studios made the transition into mobile gaming in 2008 and found success with Marvel® Puzzle Quest™, a top 100 grossing app on the App Store and top 50 grossing apps on Google Play. Previously, they worked with world-class developers like BioWare™ and Irrational Games™ on AAA console and PC games, contributing to titles such as Bioshock, Borderlands, and Mass Effect. Demiurge Studios will continue to make games under the Demiurge Studios name.
Morse, Barnes-Brown & Pendleton serves as counsel to Demiurge Studios, and advised it in connection with the structuring, negotiation and documentation of this transaction.
To learn more, read the full press release.
Tags: Advertising, Forge Worldwide, Friendly's
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MBBP would like to congratulate client Forge Worldwide, a Boston-based advertising agency, for winning a partnership with Friendly’s Ice Cream. Forge Worldwide will now oversee all television, radio, print and out-of-home advertising for Friendly’s as well as provide support to the Friendly’s team as it focuses on its re-brand and resurgence in core markets. Some other clients Forge Worldwide works with include Cisco, Rockland Trust, Brigham and Women’s Hospital, and Dragon Speech Recognition Software.
You can read the full announcement here.
Well done, Forge Worldwide!
Tags: amateur sleuths, boston globe, cold case, deborah halber, the skeleton crew
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Congratulations to MBBP client Deborah Halber on the publication of her first book, The Skeleton Crew: How Amateur Sleuths are Solving America’s Coldest Cases (Simon & Schuster, 2014)! Publishers Weekly calls this “A lively study that’s … eminently entertaining and will be devoured by armchair detectives.” The Boston Globe says that Deborah writes “vividly and engagingly” and calls the book “captivating.” We say “Way to go, Deborah!”
MBBP Publishes Articles on Data Privacy 11/27/2013Posted by Morse, Barnes-Brown Pendleton in Games & Interactive Entertainment, Privacy and Data Security, Publishing & Media.
Tags: COPPA, data privacy, FTC, mobile privacy
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MBBP has published two articles on Data Privacy, both written by licensing and intellectual property attorney Faith Kasparian. The first article, FTC’s Recommended Best Practices for Mobile Privacy Disclosures, discusses the Federal Trade Commission‘s report on privacy recommendations for mobile platforms, app developers, advertising networks (other third parties), as well as app developer trade associations including academics, usability experts, and privacy researchers. For the full article, please click here.
Faith’s second article, FTC Finds Privacy Practices Lacking in Mobile Apps for Kids, covers a report released by the FTC which raises concerns with the current lack of privacy practices and disclosures for apps directed toward children. The report also announced the launch of nonpublic investigations to determine compliance with the Children’s Online Privacy Protection Act and the Federal Trade Commission Act. For the full article, please click here.
For more information on either of these topics, please feel free to contact Faith.