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Howard Zaharoff & Faith Kasparian Quoted in Lawyer’s Weekly 05/05/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, MBBP news, Publishing & Media.
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HGZ Headshot Photo 2015 (M0846618xB1386)FDK Headshot Photo 2015 (M0846572xB1386)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.

MBBP Clients Named Finalists in SBANE New England Innovation Awards 04/06/2016

Posted by Morse Barnes-Brown Pendleton in Clean Tech, Client News, Events, Industries, Nonprofit, Publishing & Media, Telecommunications & Networking.
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SBANE Logo (M0164564xB1386)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.

 

Survey Says: Top NINE Intellectual Property Developments of 2015 03/04/2016

Posted by Morse Barnes-Brown Pendleton in Computer Software & Hardware, Intellectual Property, Licensing & Strategic Alliances, Life Sciences, Privacy and Data Security, Publishing & Media.
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happy-birthdayBy: Callie L. Pioli

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.

Get a recap on 2015 (and prepare for success in 2016) by reading our list.

We cover:

  1. Happy Birthday to All! – Marya v. Warner/Chappell Music, Inc.
  2. Google Books (Authors Guild v. Google, Inc.)
  3. Disparagement versus Free Speech: In re Tam
  4. Issue Preclusion & The TTAB: B&B Hardware, Inc. v. Hargis Indus., Inc.
  5. Patient Infringement Liability: Akamai Techs., Inc. v. Limelight Networks, Inc.
  6. Biosimilarity: Amgen v. Sandoz
  7. ­Patentability of Natural Phenomena: Ariosa Diagnostics, Inc. v. Sequenom, Inc.
  8. Computer Fraud & Abuse Act
  9. Safe Harbor Down, EU-US Privacy Shield Up

 

The Contours of Copyright #3: Too Short for Copyright? 01/04/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property, Licensing & Strategic Alliances, New Resources, Publishing & Media.
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M0846618It 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.

MBBP Clients Named 2015 MITX Awards Finalists 04/09/2015

Posted by Morse Barnes-Brown Pendleton in Clean Tech, Client News, Events, Internet and E-Commerce, Public Companies, Publishing & Media, Telecommunications & Networking.
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2015-04-09_13-16-10On 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:

Forge Worldwide
Yottaa
Mullen Advertising, Inc.
LogMeIn
Nanigans
Interactions, Corp.

Congratulations to all! To see the full list of finalists, please visit MITX.

MBBP Clients Named SBANE New England Innovation Awards Finalists 04/07/2015

Posted by Morse Barnes-Brown Pendleton in Clean Tech, Client News, Events, Industries, Manufacturing, Retail & Service, Nonprofit, Publishing & Media, Telecommunications & Networking.
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2015-04-07_11-01-36The 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.

Infringement v. Homage: Pharrell Williams, et al. v. Bridgeport Music Inc., et. al. 03/30/2015

Posted by Morse Barnes-Brown Pendleton in Intellectual Property, Legal Developments, Licensing & Strategic Alliances, Publishing & Media.
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By: Callie L. Pioli

Callie L. PioliThe music industry did not get far into 2015 before delivering a blockbuster copyright case. Pharrell Williams’ and Robin Thicke’s 2013 hit Blurred Lines was in fact only 50% their hit, according to a jury verdict in mid-March that found in favor of Marvin Gaye’s children.  As co-owners of his original 1977 hit, Got to Give it Up, Gaye’s children successfully argued that Williams and Thicke had copied numerous aspects of their father’s song and had infringed the copyright in the 1977 hit. The jury accepted the Gaye family’s contention that if Got to Give It Up had been properly licensed, the family would have received royalties of 50% of the $8 million in Blurred Lines revenue. Additionally, Williams and Thicke were forced to surrender $3.4 million of their earned profits from Blurred Lines sales.

Ironically, the lawsuit was commenced by Williams and Thicke themselves, who originally sought a preemptive ruling that Blurred Lines “shared no similarities”[1] with Got to Give It Up after receiving complaints from members of the Gaye family. The Gayes, as defendants, successfully litigated a counter-claim, arguing that the songs were substantially similar and that they were owed $25 million in royalties, profits, and statutory damages. Williams and Thicke lived up to their reputations as performers while on the stand, doing their best to persuade the jury to re-interpret copyright law as excluding the “feel” or “sound”[2] of music, and taking the opportunity to sing to the jury.

While much has been made of the spotlight on Thicke’s admitted drug use in the studio, the blatantly inconsistent statements regarding exactly how much influence Gaye had on Williams and Thicke during the writing process, and the whopping total award of $7.3 million to the Gaye family, the suit also illustrated the importance of both copyright compliance and honoring fiduciary duties. Continue reading…

Any interested “ordinary observers” can listen to a direct comparison of Blurred Lines and Got to Give it Up online.

For more information on copyright law and intellectual property licensing, please contact Callie Pioli or any member of our copyright group.

[1] Complaint for Declaratory Relief at ¶ 1, Pharrell Williams, et al. v. Bridgeport Music Inc., et. al., No. 13-06004 (N.D. Cal. Aug. 15, 2013).

[2] Id. at ¶ 2.

MBBP Client Demiurge Studios Acquired by SEGA Networks 02/20/2015

Posted by Morse Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Games & Interactive Entertainment, Intellectual Property, Legal Developments, Licensing & Strategic Alliances, New Resources, Public Companies, Publishing & Media.
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2015-02-19_10-29-40MBBP 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 BioshockBorderlands, 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.

Joe Martinez was the lead corporate attorney on MBBP’s team, which also included attorneys Mike Cavaretta, Diana Española and Hillary Peterson.

To learn more, read the full press release.

MBBP Client Forge Worldwide Wins “Sweet” Partnership with Friendly’s 02/05/2015

Posted by Morse Barnes-Brown Pendleton in Client News, Industries, Internet and E-Commerce, Public Companies, Publishing & Media, Telecommunications & Networking.
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forgelogoMBBP 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!

MBBP Client Deborah Halber Publishes First Book 07/23/2014

Posted by Morse Barnes-Brown Pendleton in Client News, Publishing & Media.
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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!”

To read an excerpt from The Skeleton Crew and complete reviews, visit Deborah’s website. To hear her July 1 On Point interview with Tom Ashbrook, click here.

MBBP Publishes Articles on Data Privacy 11/27/2013

Posted by Morse Barnes-Brown Pendleton in Games & Interactive Entertainment, Privacy and Data Security, Publishing & Media.
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IP Licensing and Trademark Attorney Faith KasparianMBBP 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.

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