Copyright Infringement

By Tamar Duvdevani and Matthew Ganas

A relatively common problem affecting the fashion industry is claims of copyright infringement over designs that appear on clothing and other merchandise.  In particular, retailers create product overseas, unaware that a print stated to be open source by an Asian manufacturing partner is actually a protected design.  And, because ignorance is no excuse in copyright infringement, retailers are often penalized for infringement that they may view as innocent – even for use of “simple” designs that may not be perceived as protectable at all.  But does this fact pattern create a finding of willful infringement, which confers additional penalties under the Act?  According to a recent decision out of the Eleventh Circuit, the answer is no.  


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Last Thursday, R&B star Robin Thicke, along with fellow artists Pharrell Williams and Clifford “T.I.” Harris, filed a suit for declaratory judgment in the U.S. District Court for the Central District of California against Marvin Gaye’s family and Bridgeport Music Inc. after receiving demand letters alleging copyright infringement and threatening suit.  Gaye’s family and Bridgeport Music Inc. allege that Thicke’s summer hit song “Blurred Lines” infringes on Gaye’s 1977 song “Got to Give It Up” and Funkadelic’s 1974 song “Sexy Ways.” Thicke, Williams, and Harris have decided to fight out the dispute in federal court.  They have asked the judge to declare that their song “Blurred Lines” does not infringe on the defendants’ claimed rights, and that the defendants do not have standing to pursue copyright infringement claims against them.


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By Kathryn Purcell-Hennessy (Brisbane, Australia)

Introduction

Internet use in Australia is widespread, with the Australian Bureau of Statistics reporting that in 2010-11 (the latest figures available), more than 50% of Australians aged between 15 and 34 created online content and downloaded videos, movies or music. More than 68% of Australians in those age brackets listened to music or watched videos or movies online and over 75% used the Internet for social media and online gaming in the same period. The Internet hosts increasing volumes of user-generated content, and encourages use of copyright materials in emerging ways, which may infringe copyright.


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By James Stewart

Madonna is the center of attention again regarding alleged misappropriation (remember the “Express Yourself” debate?).  The “Material Girl” is once again en vogue on the copyright docket in the Ninth Circuit.  According to IPLaw360, record label VMG Saloul LLC has sued Madonna, her record label, and a co-composer (collectively, “Madonna”) with whom she worked to compose and produce the smash-hit “Vogue” for copyright infringement.

VMG alleges that Madonna covertly incorporated pieces of their late-seventies disco track “Love Break” into the infamous 1990 hit single “Vogue”.  In an attempt to bypass the Copyright Act’s statute of limitations, VMG argues that it was unable to detect such copying until new technology was developed in 2011.

Madonna quickly denied that any copying took place.  However, most interesting about the Material Girl’s motion is her observation that VMG’s “new technology” argument effectively wipes out any chances of success in this infringement suit.


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