Oh, the halcyon days of the summer of ’07! Your kids (or you) were enthralled with their first chance to read Harry Potter and the Deathly Hallows. Your 401(K) balance probably had an extra zero or two on the end of it. The “steroid era of baseball” was a mere virtual certainty, rather than a documented fact. None of us had ever heard of a collateralized debt obligation or credit default swap. And I, but a baby lawyer, was enthralled with this crazy new lawsuit filed by Viacom against Google, alleging that Google was itself responsible for $1 billion worth of copyright infringement on its recently-acquired YouTube service. And oh, how the world has changed in these last three years! Teenage vampires have supplanted teenage wizards, you can safely assume that the slugger in your kid’s little league was juicing, we’re all experts on the vagaries of inventing nonexistent wealth with inscrutable financial instruments and then destroying it with other inscrutable financial instruments, and the Viacom lawsuit…well, that’s still going.
Continue Reading The View from Three Years Out: Viacom’s YouTube Litigation, Then and Now

On November 14, 2007, then-candidate Barack Obama gave a speechat Google’s headquarters in Mountain View, California in which he promised, “I will take a back seat to no one in my commitment to network neutrality. Because once providers start to privilege some applications or websites over others, then the smaller voices get squeezed out and we all lose.”

Less than a year after President Obama took office, the Federal Communications Commission (FCC) opened a formal debate on network neutrality. Just over a month ago, however, a federal court’sdecision threw a monkey wrench into the FCC’s plans to fulfill President Obama’s commitment.
Continue Reading D.C. Circuit Throws Monkey Wrench into FCC’s Plans to Enforce Network Neutrality

In 1968, Andy Warhol exhibited his first international retrospective at the Moderna Museet gallery in Stockholm. The exhibition catalogue contained the well-known phrase: “In the future everybody will be world famous for fifteen minutes.” Warhol repeated that phrase in 1979, stating that his “prediction from the sixties finally came true.” Now that we live in a world in which a video clip can go viral within hours, Warhol’s “prediction” seems more like an understatement — though if Warhol could see the “Numa Numa” guy for himself, he might not actually take much pride in his predictive powers.

Unfortunately — or, for those who view the Internet as an all-you-can-eat buffet to their insatiable appetite for attention, fortunately — more and more people are finding themselves thrust into surprising (and often unwanted) Internet stardom. So, what can you do if you become an unwilling Internet meme? (That is, besides closing your eyes and waiting for your 15 minutes to expire.) Well, it depends.
Continue Reading An Unwelcome 15 Minutes: What Can You Do?

As anyone who plays video games these days knows, computer-generated representations of real people have become both increasingly commonplace and incredibly realistic. So much so, that a new area of litigation has emerged: right of publicity lawsuits for the unauthorized use of a person’s likeness in a video game.

Right of Publicity Law

The basic idea of the right of publicity is quite simple. Under the laws of most states, a person has the right to control the commercial use of his or her identity or “likeness.” This right encompasses all of a person’s distinctive characteristics, e.g., the sound of a chanteuse’s voice; a basketball star’s former name; or even a race car driver’s distinctive racing car. Traditionally, right of publicity lawsuits have been filed over unauthorized uses of a celebrity’s likeness in advertisements (usually television commercials):
Continue Reading Leggo My Likeness: When Video Game Characters Resemble Celebrities

If you aren’t aware that the current film industry buzzword on the lips of theater-goers and film industry executives alike is “3D,” then you must have been living under a rock since December 18, 2009. That’s the date James Cameron’s 3D, Oscar Award-winning epic, Avatar, opened in theaters across the country and around the world. In the wake ofAvatar’s unprecedented success (it is the highest grossing film of all time after all), action film junkies, fan boys and girls, family fare devotees and those just wanting to check out the big summer blockbuster, are eager to see whether they will be watching their next “can’t wait” movie wearing those ever so attractive glasses.
Continue Reading 3D Conversions: Is It Time to Dust Off that Rider?

The lawsuit between Activision and the founders of Infinity Ward, Jason West and Vince Zampella, over the Call of Duty: Modern Warfare franchise may be a war, but it is anything but modern. It exemplifies the classic, time-honored struggle between the artist and the sponsor who funds the artist’s work. Whether it is the author versus the publisher, the actor versus the studio, the player versus the team owner or the musician versus the record label, the struggle has always been the same. Who is responsible for the success of an artistic enterprise? The artist who created the work or the investor who gave the artist the means by which to create?
Continue Reading An Old-School Battle Over Modern Warfare

Science-fiction author and futurist Arthur C. Clarke famously formulated three laws of prediction, the first of which posits: “When a distinguished but elderly scientist states that something is possible, he is almost certainly right. When he states that something is impossible, he is very probably wrong.” The same could be said of copyright law.

If you believe categorically that something is not copyrightable, you may well be wrong. You have a much better shot at being right if you conclude that this something possibly could be copyrightable, because the answer to the question “Is it subject to copyright protection?” is, more often than not, “It depends.” In other words, the law of copyright is weird, wacky and wonderful.
Continue Reading Can U Copyright It? Would U Want To?

There is an old Chinese proverb which cautions against drawing attention to something you are trying to conceal. As the story goes, a man named Zhang built a small fortune of 300 ounces of silver through hard work. Fearful that someone might steal his fortune, Zhang decided that the best thing to do was bury it. After burying the money, Zhang then had a brilliant idea to further ensure his money’s security. He decided to mark the spot with a sign that read: “This land does not have 300 ounces of silver buried here.”
Continue Reading When DMCA Take-Down Notices Backfire