SELECTED INTELLECTUAL PROPERTY ISSUES FOR CONTENT DISTRIBUTORS Professor F. Jay Dougherty Loyola Law School, Los Angeles IPED Symposium-Nov.1, 2007.

SELECTED INTELLECTUAL SELECTED INTELLECTUAL PROPERTY ISSUES FOR PROPERTY ISSUES FOR

CONTENT DISTRIBUTORSCONTENT DISTRIBUTORS

Professor F. Jay DoughertyProfessor F. Jay Dougherty

Loyola Law School, Los Loyola Law School, Los AngelesAngeles

IPED Symposium-Nov.1, 2007IPED Symposium-Nov.1, 2007

SELECTED IP TOPICSSELECTED IP TOPICS

CONTENT OWNERSHIP UNDER CONTENT OWNERSHIP UNDER COPYRIGHTCOPYRIGHT COLLABORATIVE CONTENTCOLLABORATIVE CONTENT

DIGITAL MUSIC RIGHTSDIGITAL MUSIC RIGHTS SECONDARY LIABILITY: P2P FILE SECONDARY LIABILITY: P2P FILE

SHARING AND MUSICSHARING AND MUSIC RIGHT OF PUBLICITY ISSUES IN RIGHT OF PUBLICITY ISSUES IN

VIDEOGAMESVIDEOGAMES

CONTENT OWNERSHIP: A CONTENT OWNERSHIP: A PRIMERPRIMER

COPYRIGHT: A BUNDLE OF EXCLUSIVE COPYRIGHT: A BUNDLE OF EXCLUSIVE RIGHTS IN WORKS OF EXPRESSIONRIGHTS IN WORKS OF EXPRESSION

WHAT IS THE ORIGINAL EXPRESSIVE WORK? WHAT IS THE ORIGINAL EXPRESSIVE WORK? WHO ORIGINATED IT?WHO ORIGINATED IT?

COPYRIGHT VESTS INITIALLY IN THE AUTHOR COPYRIGHT VESTS INITIALLY IN THE AUTHOR WHO ORIGINATES THE EXPRESSIONWHO ORIGINATES THE EXPRESSION CONCEPT/EXPRESSION/FIXATION ISSUESCONCEPT/EXPRESSION/FIXATION ISSUES SPECIAL RULES FOR “WORKS MADE FOR HIRE” SPECIAL RULES FOR “WORKS MADE FOR HIRE”

AND “WORKS OF JOINT AUTHORSHIP”AND “WORKS OF JOINT AUTHORSHIP”

WORKS MADE FOR HIREWORKS MADE FOR HIRE

ESSENTIALLY, WHERE SOMEONE OTHER THAN ESSENTIALLY, WHERE SOMEONE OTHER THAN THE CREATOR IS THE MOTIVATING FORCE FOR THE CREATOR IS THE MOTIVATING FORCE FOR THE WORK AND IT IS CREATED AT ANOTHER’S THE WORK AND IT IS CREATED AT ANOTHER’S EXPENSEEXPENSE

2 TYPES2 TYPES WORKS CREATED BY AN “EMPLOYEE” WITHIN WORKS CREATED BY AN “EMPLOYEE” WITHIN

THE SCOPE OF EMPLOYMENTTHE SCOPE OF EMPLOYMENT SPECIALLY COMMISSIONED (INDEPENDENT SPECIALLY COMMISSIONED (INDEPENDENT

CONTRACTOR) WORKS, UNDER CERTAIN CONTRACTOR) WORKS, UNDER CERTAIN CIRCUMSTANCESCIRCUMSTANCES

NOTE: RULES CHANGED ON JAN. 1, 1978NOTE: RULES CHANGED ON JAN. 1, 1978 NOTE: IMPORTANT ALSO BECAUSE NO STATUTORY NOTE: IMPORTANT ALSO BECAUSE NO STATUTORY

TERMINATION OF GRANTSTERMINATION OF GRANTS

EMPLOYEE WORKSEMPLOYEE WORKS

WHERE WORK CREATED BY EMPLOYEE WITHIN SCOPE OF EMPLOYMENT, WHERE WORK CREATED BY EMPLOYEE WITHIN SCOPE OF EMPLOYMENT, THE EMPLOYER IS DEEMED THE “AUTHOR” FOR U.S. COPYRIGHT THE EMPLOYER IS DEEMED THE “AUTHOR” FOR U.S. COPYRIGHT PURPOSES, AND OWNS THE COPYRIGHT UNLESS THEY AGREE PURPOSES, AND OWNS THE COPYRIGHT UNLESS THEY AGREE OTHERWISE IN WRITING. 1976 ACT §201(b).OTHERWISE IN WRITING. 1976 ACT §201(b). Nb: Many foreign countries do not recognize “work for hire” under Nb: Many foreign countries do not recognize “work for hire” under

their own laws.their own laws. WHAT IS AN “EMPLOYEE”?WHAT IS AN “EMPLOYEE”?

DIFFERING VIEWS UNTIL DIFFERING VIEWS UNTIL COMMUNITY FOR CREATIVE NON-VIOLENCE COMMUNITY FOR CREATIVE NON-VIOLENCE v. REIDv. REID (USSC, 1989) (USSC, 1989)

NOT JUST FORMAL SALARIED EMPLOYEES. MULTI-FACTOR TEST NOT JUST FORMAL SALARIED EMPLOYEES. MULTI-FACTOR TEST FROM RESTATEMENT (2d) OF AGENCY (e.g., .RIGHT TO CONTROL FROM RESTATEMENT (2d) OF AGENCY (e.g., .RIGHT TO CONTROL MANNER & MEANS OF WORK, PAYROLL FORMALITIES, BENEFITS, MANNER & MEANS OF WORK, PAYROLL FORMALITIES, BENEFITS, TAX TREATMENT, MANY OTHERS)TAX TREATMENT, MANY OTHERS)

WHAT IS “SCOPE OF EMPLOYMENT”? SEE, REST.(2d) AGENCY.WHAT IS “SCOPE OF EMPLOYMENT”? SEE, REST.(2d) AGENCY. WORK OF THE TYPE EMPLOYEE HIRED TO PERFORMWORK OF THE TYPE EMPLOYEE HIRED TO PERFORM CREATION SUBSTANTIALLY WITHIN AUTHORIZED TIME AND SPACE CREATION SUBSTANTIALLY WITHIN AUTHORIZED TIME AND SPACE

LIMITS (nb: MIGHT EXTEND TO WORK AT HOME)LIMITS (nb: MIGHT EXTEND TO WORK AT HOME) ACTUATED AT LEAST IN PART BY SERVING THE EMPLOYER’S PURPOSEACTUATED AT LEAST IN PART BY SERVING THE EMPLOYER’S PURPOSE

COMMISSIONED WORKSCOMMISSIONED WORKS

““COMMISSIONED”=CREATED AT ANOTHER’S COMMISSIONED”=CREATED AT ANOTHER’S “INSTANCE AND EXPENSE”“INSTANCE AND EXPENSE”

ONLY IF WITHIN 9 SPECIFIED CATEGORIES OF ONLY IF WITHIN 9 SPECIFIED CATEGORIES OF WORKSWORKS E.g., CONTRIBUTION TO A COLLECTIVE WORK OR E.g., CONTRIBUTION TO A COLLECTIVE WORK OR

AUDIOVISUAL WORKAUDIOVISUAL WORK Nb: SOUND RECORDINGS NOT A CATEGORYNb: SOUND RECORDINGS NOT A CATEGORY

BOTH PARTIES MUST EXPRESSLY AGREE IN A BOTH PARTIES MUST EXPRESSLY AGREE IN A WRITTEN INSTRUMENT SIGNED BY THEM THAT IT WRITTEN INSTRUMENT SIGNED BY THEM THAT IT WILL BE CONSIDERED A WORK MADE FOR HIREWILL BE CONSIDERED A WORK MADE FOR HIRE

Nb: TIMING OF THE WRITTEN INSTRUMENT?Nb: TIMING OF THE WRITTEN INSTRUMENT?

JOINT WORKSJOINT WORKS

IMPORTANCE: JOINT AUTHORS ARE TENANTS IN COMMONIMPORTANCE: JOINT AUTHORS ARE TENANTS IN COMMON SHARE AN UNDIVIDED INTEREST IN THE WHOLE WORK, SHARE AN UNDIVIDED INTEREST IN THE WHOLE WORK,

NOT JUST THEIR CONTRIBUTIONSNOT JUST THEIR CONTRIBUTIONS EITHER CAN USE OR LICENSE, SUBJECT TO DUTY TO EITHER CAN USE OR LICENSE, SUBJECT TO DUTY TO

ACCOUNT TO CO-OWNERSACCOUNT TO CO-OWNERS WORK PREPARED BY 2 OR MORE AUTHORS WITH THE WORK PREPARED BY 2 OR MORE AUTHORS WITH THE

INTENT TO MERGE THEIR CONTRIBUTIONS INTO A UNITARY INTENT TO MERGE THEIR CONTRIBUTIONS INTO A UNITARY WHOLEWHOLE

ADDITIONAL COURT-MADE REQUIREMENTS:ADDITIONAL COURT-MADE REQUIREMENTS: INTENTION TO SHARE AUTHORSHIPINTENTION TO SHARE AUTHORSHIP SEPARATELY COPYRIGHTABLE CONTRIBUTIONSEPARATELY COPYRIGHTABLE CONTRIBUTION

But see, But see, Gaiman v. McFarlaneGaiman v. McFarlane (7 (7thth Cir., 2004) Cir., 2004)(contributor of non-copyrightable “expressive (contributor of non-copyrightable “expressive content” was a co-author of comic book characters content” was a co-author of comic book characters created in collaboration)created in collaboration)

MUSIC RIGHTSMUSIC RIGHTS

IMPORTANT TO DISTINGUISH:IMPORTANT TO DISTINGUISH: ““MUSICAL WORK”: THE SONG—MELODY, MUSICAL WORK”: THE SONG—MELODY,

LYRICS, ETC., FROM…LYRICS, ETC., FROM… AUTHOR(S): THE SONGWRITER(S).AUTHOR(S): THE SONGWRITER(S). JOINT WORK NOT UNUSUALJOINT WORK NOT UNUSUAL OFTEN ASSIGNED TO A MUSIC PUBLISHEROFTEN ASSIGNED TO A MUSIC PUBLISHER

““SOUND RECORDING”: A “FIXED” (RECORDED) SOUND RECORDING”: A “FIXED” (RECORDED) PERFORMANCE OF THE SONGPERFORMANCE OF THE SONG

DIFFERENT SOUND RECORDINGS COULD BE MADE OF DIFFERENT SOUND RECORDINGS COULD BE MADE OF THE SAME SONGTHE SAME SONG

““AUTHORS”: USUALLY THE PERFORMERS, CREATIVE AUTHORS”: USUALLY THE PERFORMERS, CREATIVE PRODUCER. PRODUCER.

OFTEN OWNED BY A RECORD COMPANY (WFH?)OFTEN OWNED BY A RECORD COMPANY (WFH?)

MUSICAL WORK/SONGMUSICAL WORK/SONG

INCLUDES WORDS, IF ANYINCLUDES WORDS, IF ANY FULL PANOPLY OF RIGHTS:FULL PANOPLY OF RIGHTS:

REPRODUCE, PUBLIC DISTRIBUTION, PUBLIC PERFORMANCE, PUBLIC REPRODUCE, PUBLIC DISTRIBUTION, PUBLIC PERFORMANCE, PUBLIC DISPLAY, ADAPTATION/”DERIVATIVE WORKS”DISPLAY, ADAPTATION/”DERIVATIVE WORKS”

COMPULSORY MECHANICAL LICENSE, INCLUDES DIGITAL COMPULSORY MECHANICAL LICENSE, INCLUDES DIGITAL DOWNLOADSDOWNLOADS

NONDRAMATIC PERFORMANCES GENERALLY NONDRAMATIC PERFORMANCES GENERALLY LICENSED/ADMINISTERED BY A “PERFORMING RIGHTS SOCIETY”LICENSED/ADMINISTERED BY A “PERFORMING RIGHTS SOCIETY”

IN U.S.: ASCAP, BMI OR SESACIN U.S.: ASCAP, BMI OR SESAC NOT LIMITED TO DIGITAL PERFORMANCES (eg CLUBS, NON-NOT LIMITED TO DIGITAL PERFORMANCES (eg CLUBS, NON-

DIGITAL RADIO/TV, ETC.)DIGITAL RADIO/TV, ETC.) ““PERFORM” = RECITE, RENDER, PLAY, ETC.PERFORM” = RECITE, RENDER, PLAY, ETC.

Nb: RECENT DECISION THAT A PURE DOWNLOAD IS Nb: RECENT DECISION THAT A PURE DOWNLOAD IS NOTNOT A A “PERFORMANCE”“PERFORMANCE”

““PUBLIC” = (1) PLACE OPEN TO PUBLIC, OR (2) ANY PLACE WITH A PUBLIC” = (1) PLACE OPEN TO PUBLIC, OR (2) ANY PLACE WITH A SUBSTANTIAL NUMBER OF PERSONS (IN ADDITION TO FAMILY, SOCIAL SUBSTANTIAL NUMBER OF PERSONS (IN ADDITION TO FAMILY, SOCIAL ACQUAITANCES) GATHERED, OR (3) TRANSMISSION/COMMUNICATION ACQUAITANCES) GATHERED, OR (3) TRANSMISSION/COMMUNICATION TO (1) OR (2), EVEN IF SEPARATE PLACES AND/OR DIFFERENT TIMES.TO (1) OR (2), EVEN IF SEPARATE PLACES AND/OR DIFFERENT TIMES.

SOUND RECORDINGSSOUND RECORDINGS

LIMITED RIGHTSLIMITED RIGHTS DERIVATIVE WORKS: ONLY IF LITERALLY TAKES DERIVATIVE WORKS: ONLY IF LITERALLY TAKES

ACTUAL SOUNDS ACTUAL SOUNDS NOT AN IMITATION OF PRIOR RECORDINGNOT AN IMITATION OF PRIOR RECORDING

—”SOUNDALIKES” ARE PERMITTED UNDER C/R—”SOUNDALIKES” ARE PERMITTED UNDER C/R BUT nb: RECENT DECISION RE DIGITAL SAMPLES—NO BUT nb: RECENT DECISION RE DIGITAL SAMPLES—NO

“DE MINIMIS” USE DEFENSE, EVEN A TINY, “DE MINIMIS” USE DEFENSE, EVEN A TINY, UNRECOGNIZABLE LITERAL USE MAY INFRINGE (but UNRECOGNIZABLE LITERAL USE MAY INFRINGE (but consider fair use)consider fair use)

NO GENERAL PUBLIC PERFORMANCE RIGHTNO GENERAL PUBLIC PERFORMANCE RIGHT CURRENT LOBBYING TO OBTAINCURRENT LOBBYING TO OBTAIN

SOUND RECORDINGS—DIGITAL AUDIO SOUND RECORDINGS—DIGITAL AUDIO TRANSMISSIONSTRANSMISSIONS

BACKGROUNDBACKGROUND 11STST DIGITAL AUDIO RECORDING TECHNOLOGY DIGITAL AUDIO RECORDING TECHNOLOGY

(DAT) LED TO AUDIO HOME RECORDING ACT(DAT) LED TO AUDIO HOME RECORDING ACT ROYALTY ON HARDWARE & MEDIA, SHARED ROYALTY ON HARDWARE & MEDIA, SHARED

AMONG STAKEHOLDERS PER STATUTEAMONG STAKEHOLDERS PER STATUTE MANDATED SERIAL COPY MANAGEMENTMANDATED SERIAL COPY MANAGEMENT NO INFRINGEMENT TO MAKE NO INFRINGEMENT TO MAKE

NONCOMMERCIAL PERSONAL COPIES NONCOMMERCIAL PERSONAL COPIES (INCLUDING ANALOG)(INCLUDING ANALOG)

““CELESTIAL JUKEBOX” PROBLEM: DIGITAL CELESTIAL JUKEBOX” PROBLEM: DIGITAL INTERNET TRANSMISSIONS COULD INTERNET TRANSMISSIONS COULD SUBSTITUTE FOR RECORD PURCHASESUBSTITUTE FOR RECORD PURCHASE

SOUND RECORDINGS—DIGITAL AUDIO SOUND RECORDINGS—DIGITAL AUDIO TRANSMISSIONSTRANSMISSIONS

§114(d): COMPLEX RULES§114(d): COMPLEX RULES IF ELIGIBLE, NON-INTERACTIVE TRANSMISSION, POSSIBLE IF ELIGIBLE, NON-INTERACTIVE TRANSMISSION, POSSIBLE

COMPULSORY(“STATUTORY”) LICENSECOMPULSORY(“STATUTORY”) LICENSE ELIGIBILITY: NOT TOO MANY SONGS FROM ONE ALBUM OR ARTIST, ELIGIBILITY: NOT TOO MANY SONGS FROM ONE ALBUM OR ARTIST,

ADVANCE PROGRAM SCHEDULE NOT PUBLISHED. i.e., NOT EASILY ADVANCE PROGRAM SCHEDULE NOT PUBLISHED. i.e., NOT EASILY USED AS A SUBSTITUTE FOR RECORD PURCHASEUSED AS A SUBSTITUTE FOR RECORD PURCHASE

PERMITS INTERESTED GROUPS TO NEGOTIATE RATES, OTHERWISE, PERMITS INTERESTED GROUPS TO NEGOTIATE RATES, OTHERWISE, COPYRIGHT ROYALTY JUDGESCOPYRIGHT ROYALTY JUDGES

CONTROVERSY NOW RE WEBCASTER ROYALTIES (PER CONTROVERSY NOW RE WEBCASTER ROYALTIES (PER PERFORMANCE VS. SHARE OF REVENUE)PERFORMANCE VS. SHARE OF REVENUE)

IF SET STATUTORILY, ROYALTIES ALLOCATED PER STATUTE TO IF SET STATUTORILY, ROYALTIES ALLOCATED PER STATUTE TO STAKEHOLDERSSTAKEHOLDERS

IF DOESN’T QUALIFY (e.g. INTERACTIVE), TRANSMITTER NEEDS TO IF DOESN’T QUALIFY (e.g. INTERACTIVE), TRANSMITTER NEEDS TO NEGOTIATE A CONSENSUAL LICENSENEGOTIATE A CONSENSUAL LICENSE

SLIGHTLY DIFFERENT RULES FOR PREEXISTING SUBSCRIPTION SERVICES, SLIGHTLY DIFFERENT RULES FOR PREEXISTING SUBSCRIPTION SERVICES, OTHER SUBSCRIPTION SERVICES, NON-SUBSCRIPTION SERVICESOTHER SUBSCRIPTION SERVICES, NON-SUBSCRIPTION SERVICES

THERE ARE SOME “EXEMPTIONS”, e.g. NONSUBSCRIPTION BROADCAST THERE ARE SOME “EXEMPTIONS”, e.g. NONSUBSCRIPTION BROADCAST TRANSMISSIONS (i.e. DIGITAL BROADCAST RADIO), RETRANSMISSIONS TRANSMISSIONS (i.e. DIGITAL BROADCAST RADIO), RETRANSMISSIONS (SUBJECT TO COMPLEX LIMITATIONS)(SUBJECT TO COMPLEX LIMITATIONS)

P2P FILE SHARINGP2P FILE SHARING

INITIALLY, FILES ACCESSED THROUGH A INITIALLY, FILES ACCESSED THROUGH A “SERVER”, NOT DIRECTLY FROM OTHER “SERVER”, NOT DIRECTLY FROM OTHER CLIENT COMPUTERSCLIENT COMPUTERS

P2P PERMITS DIRECT “SHARING” AMONG P2P PERMITS DIRECT “SHARING” AMONG CLIENTSCLIENTS

COMBINED WITH DIGITAL COMPRESSION AND COMBINED WITH DIGITAL COMPRESSION AND INCREASED BANDWIDTH, PERMITS WIDE INCREASED BANDWIDTH, PERMITS WIDE DISTRIBUTION OF CONTENT WITHOUT DISTRIBUTION OF CONTENT WITHOUT CONTROL/PERMISSION OF COPYRIGHT CONTROL/PERMISSION OF COPYRIGHT OWNEROWNER

INITIALLY, MUSIC (BECAUSE VIDEO FILES ARE INITIALLY, MUSIC (BECAUSE VIDEO FILES ARE MUCH BIGGER). NOW, VIDEO AS WELL.MUCH BIGGER). NOW, VIDEO AS WELL.

SECONDARY COPYRIGHT SECONDARY COPYRIGHT LIABILITY IN P2PLIABILITY IN P2P

UPLOADING/DOWNLOADING FILES IS A UPLOADING/DOWNLOADING FILES IS A “DIRECT” INFRINGEMENT—“DIRECT” INFRINGEMENT—REPRODUCTION/DISTRIBUTIONREPRODUCTION/DISTRIBUTION BILLIONS OF SONGS PER MONTHBILLIONS OF SONGS PER MONTH

CONTENT OWNERS WOULD PREFER TO CONTENT OWNERS WOULD PREFER TO SHUT DOWN ENABLERS/MIDDLEMEN SHUT DOWN ENABLERS/MIDDLEMEN RATHER THAN SUING INDIVIDUAL USERSRATHER THAN SUING INDIVIDUAL USERS

MIDDLEMEN MAY NOT BE DIRECT MIDDLEMEN MAY NOT BE DIRECT INFRINGERS, SO APPLY SECONDARY INFRINGERS, SO APPLY SECONDARY LIABILITY CONCEPTSLIABILITY CONCEPTS

SECONDARY LIABILITY IN SECONDARY LIABILITY IN COPYRIGHTCOPYRIGHT

TWO TYPESTWO TYPES VICARIOUS LIABILITYVICARIOUS LIABILITY CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT CF. PHONOVISA FLEAMARKET DECISIONCF. PHONOVISA FLEAMARKET DECISION

VICARIOUS LIABILITYVICARIOUS LIABILITY

VICARIOUS LIABILITYVICARIOUS LIABILITY RIGHT/ABILITY TO SUPERVISE/CONTROLRIGHT/ABILITY TO SUPERVISE/CONTROL FINANCIAL INTEREST IN THE FINANCIAL INTEREST IN THE

INFRINGEMENTINFRINGEMENT Nb: KNOWLEDGE OF INFRINGEMENT Nb: KNOWLEDGE OF INFRINGEMENT

NOT REQUIREDNOT REQUIRED

CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT

CONTRIBUTORY INFRINGEMENTCONTRIBUTORY INFRINGEMENT WITH KNOWLEDGE OF INFRINGEMENTWITH KNOWLEDGE OF INFRINGEMENT INDUCES OR MATERIALLY CONTRIBUTES TO INDUCES OR MATERIALLY CONTRIBUTES TO

THE INFRINGEMENTTHE INFRINGEMENT E.G. PROVIDES “SITE AND FACILITIES”E.G. PROVIDES “SITE AND FACILITIES”

CONSIDER TECHNOLOGY WITH CAPABILITY OF CONSIDER TECHNOLOGY WITH CAPABILITY OF EITHER INFRINGING OR NON-INFRINGING USE—EITHER INFRINGING OR NON-INFRINGING USE—SONY BETAMAXSONY BETAMAX PROBLEM PROBLEM

IF NO ACTUAL KNOWLEDGE AND IF NO ACTUAL KNOWLEDGE AND TECHNOLOGY CAPABLE OF “SUBSTANTIAL TECHNOLOGY CAPABLE OF “SUBSTANTIAL NON-INFRINGING USE”, NO CONSTRUCTIVE NON-INFRINGING USE”, NO CONSTRUCTIVE KNOWLEDGE, NO CONTRIBUTORY LIABILITYKNOWLEDGE, NO CONTRIBUTORY LIABILITY

NAPSTERNAPSTER

USED CENTRAL COMPUTER TO CREATE AN INDEX USED CENTRAL COMPUTER TO CREATE AN INDEX OF ALL CURRENTLY ONLINE USERS WITH A OF ALL CURRENTLY ONLINE USERS WITH A PARTICULAR TUNEPARTICULAR TUNE

LINKED REQUESTING CLIENT WITH OTHERS LINKED REQUESTING CLIENT WITH OTHERS AVAILABLE FOR DOWNLOAD, WHICH THEN AVAILABLE FOR DOWNLOAD, WHICH THEN OCCURRED DIRECTLY BETWEEN PEERSOCCURRED DIRECTLY BETWEEN PEERS

VICARIOUS: BECAUSE CENTRALIZED, HAD VICARIOUS: BECAUSE CENTRALIZED, HAD ABILITY TO CONTROL. ALTHOUGH NOT AS DIRECT ABILITY TO CONTROL. ALTHOUGH NOT AS DIRECT AS OLD CASES, EXPECTED A FINANCIAL BENEFIT.AS OLD CASES, EXPECTED A FINANCIAL BENEFIT.

CONTRIBUTORY: BECAUSE CENTRALIZED, HAD CONTRIBUTORY: BECAUSE CENTRALIZED, HAD KNOWLEDGE. PROVIDED “SITE AND FACILITIES”.KNOWLEDGE. PROVIDED “SITE AND FACILITIES”.

POST-NAPSTER P2PPOST-NAPSTER P2P

NEWER TECHNOLOGIES DIDN’T USE A CENTRALIZED INDEX, NEWER TECHNOLOGIES DIDN’T USE A CENTRALIZED INDEX, PERMITTED MORE DECENTRALIZED ACCESSPERMITTED MORE DECENTRALIZED ACCESS

SOME ALSO CONCEALED INFORMATION ABOUT SHARED FILESSOME ALSO CONCEALED INFORMATION ABOUT SHARED FILES SO NO RIGHT/ABILITY TO SUPERVISE, OR ACTUAL KNOWLEDGE. SO NO RIGHT/ABILITY TO SUPERVISE, OR ACTUAL KNOWLEDGE.

LOWER CTS.-NOT LIABLE, APPEALED TO USSC.LOWER CTS.-NOT LIABLE, APPEALED TO USSC. MUCH DEBATE AS TO INTERPRETATION OF MUCH DEBATE AS TO INTERPRETATION OF SONYSONY MGM v. GROKSTERMGM v. GROKSTER: USSC MAJORITY DODGED INTERPRETING : USSC MAJORITY DODGED INTERPRETING

SONYSONY, FOUND POTENTIAL CONTRIBUTORY LIABILITY BY VIRTUE , FOUND POTENTIAL CONTRIBUTORY LIABILITY BY VIRTUE OF EVIDENCE OF SPECIFIC ACTS TO ENCOURAGE/INDUCE OF EVIDENCE OF SPECIFIC ACTS TO ENCOURAGE/INDUCE INFRINGEMENTINFRINGEMENT EVIDENCE IN CONFLICT, BUT MAYBE 10% OF USE WAS EVIDENCE IN CONFLICT, BUT MAYBE 10% OF USE WAS

NONINFRINGINGNONINFRINGING SOME JUSTICES WOULD FIND THAT SUFFICIENT NON-SOME JUSTICES WOULD FIND THAT SUFFICIENT NON-

INFRINGING USE TO SATISFY INFRINGING USE TO SATISFY SONYSONY. OTHERS DISAGREED.. OTHERS DISAGREED.

RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES

RIGHT OF PUBLICITY: STATE LAW, DERIVED RIGHT OF PUBLICITY: STATE LAW, DERIVED FROM TYPE OF INVASION OF PRIVACY + FROM TYPE OF INVASION OF PRIVACY + UNFAIR COMPETITIONUNFAIR COMPETITION STATE LAWS VARY, NOT ALL RECOGNIZESTATE LAWS VARY, NOT ALL RECOGNIZE

E.G. NOT ALWAYS “DESCENDIBLE” AFTER DEATHE.G. NOT ALWAYS “DESCENDIBLE” AFTER DEATH

UNAUTHORIZED USE OF NAME, LIKENESS, UNAUTHORIZED USE OF NAME, LIKENESS, OTHER INDICIA OF IDENTITY/PERSONA FOR OTHER INDICIA OF IDENTITY/PERSONA FOR ADVERTISING OR PURPOSES OF TRADE/ON ADVERTISING OR PURPOSES OF TRADE/ON OR IN PRODUCTS/MERCHANDISEOR IN PRODUCTS/MERCHANDISE

RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES

RIGHT OF PUBLICITY CAN CONFLICT WITH RIGHT OF PUBLICITY CAN CONFLICT WITH FREEDOM OF SPEECH, ESPECIALLY WHEN FREEDOM OF SPEECH, ESPECIALLY WHEN ASSERTED AGAINST USE OF PERSONA IN ASSERTED AGAINST USE OF PERSONA IN INFORMATIVE OR EXPRESSIVE WORKS.INFORMATIVE OR EXPRESSIVE WORKS.

HOW TO “BALANCE” IS UNSETTLED—DIFFERENT HOW TO “BALANCE” IS UNSETTLED—DIFFERENT STATES HAVE DIFFERENT APPROACHESSTATES HAVE DIFFERENT APPROACHES E.G. CALIFORNIA: “TRANSFORMATIVENESS”E.G. CALIFORNIA: “TRANSFORMATIVENESS” MISSOURI: “PREDOMINANT PURPOSE”MISSOURI: “PREDOMINANT PURPOSE” SOME OTHERS: RELEVANCE OR RELATIONSHIP SOME OTHERS: RELEVANCE OR RELATIONSHIP

TO THE MESSAGETO THE MESSAGE PARODY/SATIRE HAS ALSO DEFEATED RIGHT OF PARODY/SATIRE HAS ALSO DEFEATED RIGHT OF

PUBLICITYPUBLICITY

RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES

GAMES CAN CONVEY INFORMATION, BUT GAMES CAN CONVEY INFORMATION, BUT SOME CASES IN THE ’60s AGAINST SPORTS SOME CASES IN THE ’60s AGAINST SPORTS SIMULATION BOARDGAMES FOUND SIMULATION BOARDGAMES FOUND VIOLATION OF THE RIGHTVIOLATION OF THE RIGHT

TWO RECENT DECISIONS FOUND TWO RECENT DECISIONS FOUND OTHERWISEOTHERWISE

GENERALLY, MOST COURTS HAVE FOUND GENERALLY, MOST COURTS HAVE FOUND VIDEOGAMES TO BE CONSTITUTIONALLY VIDEOGAMES TO BE CONSTITUTIONALLY PROTECTED “SPEECH”PROTECTED “SPEECH”

RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES

““FANTASY BASEBALL”/FANTASY BASEBALL”/C.B.C. v. MAJOR LEAGUE BASEBALL C.B.C. v. MAJOR LEAGUE BASEBALL ADVANCED MEDIAADVANCED MEDIA DIST. CT. (E.D. Mo. 2006) GAVE SUMMARY JUDGEMENT DIST. CT. (E.D. Mo. 2006) GAVE SUMMARY JUDGEMENT

TO GAME CO.TO GAME CO. NOT USING PLAYERS’ NAMES/PLAYING RECORDS NOT USING PLAYERS’ NAMES/PLAYING RECORDS

AS A “SYMBOL OF THEIR IDENTITIES TO OBTAIN A AS A “SYMBOL OF THEIR IDENTITIES TO OBTAIN A COMMERCIAL ADVANTAGE”COMMERCIAL ADVANTAGE”

DISTINGUISH OLD GAME CASES, BECAUSE THEY DISTINGUISH OLD GAME CASES, BECAUSE THEY USED LIKENESSES & BASED ON “PRIVACY”USED LIKENESSES & BASED ON “PRIVACY”

ALSO: 1ALSO: 1STST AMENDMENT OUTWEIGHS RIGHT OF AMENDMENT OUTWEIGHS RIGHT OF PUBLICITY IN THIS CONTEXTPUBLICITY IN THIS CONTEXT

““FANTASY BASEBALL”/FANTASY BASEBALL”/C.B.C. v. C.B.C. v. MAJOR LEAGUE BASEBALL MAJOR LEAGUE BASEBALL

ADVANCED MEDIAADVANCED MEDIA 8th CIR. JUST AFFIRMED (OCT. 16, 2007)8th CIR. JUST AFFIRMED (OCT. 16, 2007) DISAGREED AS TO WHETHER RIGHT WAS VIOLATEDDISAGREED AS TO WHETHER RIGHT WAS VIOLATED

CBC IS USING PLAYERS’ IDENTITIES FOR PROFIT/COMMERCIAL CBC IS USING PLAYERS’ IDENTITIES FOR PROFIT/COMMERCIAL ADVANTAGEADVANTAGE

NO NEED FOR FALSE ENDORSEMENTNO NEED FOR FALSE ENDORSEMENT BUT: AFFIRMED AS TO 1BUT: AFFIRMED AS TO 1STST AMENDMENT AMENDMENT

FACTUAL DATA ABOUT ATHLETIC PERFORMANCE COMMANDS FACTUAL DATA ABOUT ATHLETIC PERFORMANCE COMMANDS SUBSTANTIAL PUBLIC INTEREST AND IS ENTITLED TO SUBSTANTIAL PUBLIC INTEREST AND IS ENTITLED TO CONSTITUTIONAL PROTECTIONCONSTITUTIONAL PROTECTION

INTERESTS PROTECTED BY RIGHT OF PUBLICITY NOT HARMED INTERESTS PROTECTED BY RIGHT OF PUBLICITY NOT HARMED PLAYERS ARE REWARDED FOR THEIR PERFORMANCES AND PLAYERS ARE REWARDED FOR THEIR PERFORMANCES AND

ENDORSEMENTSENDORSEMENTS ALL PLAYERS ARE USED, SO NO FALSE ENDORSEMENT BY A ALL PLAYERS ARE USED, SO NO FALSE ENDORSEMENT BY A

PLAYER WITH “STAR POWER”PLAYER WITH “STAR POWER” DISSENT WOULD FIND VIOLATION OF CONTRACTUAL AGREEMENT NOT DISSENT WOULD FIND VIOLATION OF CONTRACTUAL AGREEMENT NOT

TO CHALLENGE OR USE MLBPA’S RIGHTSTO CHALLENGE OR USE MLBPA’S RIGHTS

RIGHT OF PUBLICITY IN RIGHT OF PUBLICITY IN VIDEO/COMPUTER GAMESVIDEO/COMPUTER GAMES

KIRBY v. SEGAKIRBY v. SEGA (CAL. APP. 2006) (CAL. APP. 2006) POP SINGER FROM DEEE-LITE CLAIMED A CHARACTER IN “SPACE POP SINGER FROM DEEE-LITE CLAIMED A CHARACTER IN “SPACE

CHANNEL 5” USED HER IDENTITYCHANNEL 5” USED HER IDENTITY LOWER CT. FOUND ISSUE OF FACT AS TO USE OF KIRBY’S LOWER CT. FOUND ISSUE OF FACT AS TO USE OF KIRBY’S

IDENTITY. THIS CT. AGREES.IDENTITY. THIS CT. AGREES. BUT VIDEOGAMES ARE “EXPRESSIVE WORKS ENTITLED TO AS BUT VIDEOGAMES ARE “EXPRESSIVE WORKS ENTITLED TO AS

MUCH FIRST AMENDMENT PROTECTION AS THE MOST MUCH FIRST AMENDMENT PROTECTION AS THE MOST PROFOUND LITERATURE.”PROFOUND LITERATURE.” APPLIES “TRANSFORMATIVENESS” TEST—SATISFIEDAPPLIES “TRANSFORMATIVENESS” TEST—SATISFIED

ADDED SOMETHING NEW, “ALTERING THE FIRST WITH ADDED SOMETHING NEW, “ALTERING THE FIRST WITH NEW EXPRESSION, MEANING OR MESSAGE”NEW EXPRESSION, MEANING OR MESSAGE”

REJECTS “PREDOMINANT PURPOSE” TESTREJECTS “PREDOMINANT PURPOSE” TEST NOT NECESSARY TO BE A PARODY OR CONVEY A MEANING NOT NECESSARY TO BE A PARODY OR CONVEY A MEANING

OR MESSAGE AS LONG AS IT ADDS NEW EXPRESSIONOR MESSAGE AS LONG AS IT ADDS NEW EXPRESSION THIS ALSO DEFEATS HER LANHAM ACT, UNFAIR COMPETITION THIS ALSO DEFEATS HER LANHAM ACT, UNFAIR COMPETITION

CLAIMSCLAIMS