Well this is interesting, even if some may not want to hear it.
The Computer & Communications Industry Association released a study today entitled “The Sky is Rising,” in which it states that, economically speaking, the entertainment industry grew by 50 percent over the past decade and that consumer spending on entertainment also increased.
I for one am going to more movies again, but I merely attributed this to the fact that my kids are now old enough to watch themselves while Andrea and I catch a flick. In any event, as to doing my part in connection with the economic up tick in the industry, you’re welcome.
A link to the actual report is here: http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/000000000586/TheSkyIsRising7-130.pdf .
A brief summary of some of the report’s findings are here:
• Consumer spending on entertainment as a percentage of household income rose 15% between the years of 2000 and 2008;
• Employment in the entertainment industry grew 20% during over the last decade, which apparently includes a large group of individuals – nearly half of the total increase -- who identify themselves as “independent artists”;
• Box office revenue jumped 25% from 2006 to 2010 (talking round numbers, that’s up $6 billion -- from $25.5 billion to $31.8 billion);
• The number movies produced is increasing at a terrific rate: leaping from 5,635 in 2005 to 7,193 in 2009
• The value of the entertainment industry worldwide grew nearly $300 billion between 1998 and 2010, from $449 billion to $745 billion (so nearly $25 B per year); and
• Concert sales in the U.S. went from $1.5 billion to $4.6 billion over the decade from 1999 to 2009. Now that reason to party likes it’s 1999.
As to movies produced, and box office bang, one can only assume that indy films deserve a good deal of credit for this. After all, with the increasing ease with which these films can be made, financed and distributed, many traditional barriers, long faced by film-makers, no longer exist. It’s easier than ever to create a film on a shoestring and actually get it into theaters, or directly into the homes of audience members. This is good news! It means that we’re guaranteed a treasure trove of cinematic gems that never would have seen a screening room 2 decades ago. I can’t see this as anything other than a big win for us all.
But what about the oft-heard dire statements about the death of the entertainment industry at the hands of the Internet? That’s part of what was driving SOPA. Does this mean that Sillywood will not kill Hollywood? Does it mean that Sillywood and Hollywood are on the verge of a new Golden Age, and will wander off, hand-in-hand into the sunset?
Who knows. I for one am encouraged by these figures, but stay tuned. . . .
And in the meantime, stop reading this post and go make a movie, write a film or record a song.
Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.
Monday, January 30, 2012
Friday, January 27, 2012
A Prince of the Art World
Richard Prince is an artist. At least according to some people. Others have less flattering terms for what he does.
Prince is principally a painter and a photographer. He may be best known for his technique of “appropriating” photographs which he then “rephotographs” to create his works.
One example of this is his work involving photographs from Marlboro cigarette ads of the Marlboro Man. Prince's rephotographed these ads (thus incorporating the works of other photographers) to create his pieces, one of which sold at Christie's in New York for more than $1 million in 2005.
His works have been collected by major institutions, including the Guggenheim.
Shockingly, this practice of “rephotographing” did not sit well with some of photographers whose work appeared in Prince’s pieces. Photographer Patric Cariou is one such photographer.
In December 2008, Cariou filed suit against Prince, the Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications, asserting copyright infringement in some of the works Prince was showing (and selling) Gagosian’s shop.
Specifically, Cariou alleged that Prince had appropriated 35 of Cariou’s photographs some of which he claimed had barely been changed by Prince. In addition, Cariou alleged that Prince also made more than two dozen paintings that included Cariou’s images.
This is a problem?
Prince argued that his use of the photographs amounted to “fair use.”
As you know, the “fair use” defense is decided on a case-by-case basis. As the Supreme Court noted in its recent ruling in Golan v. Holder (Jan 2012):
[T]he fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).
Well, try as he might to sell the “fair use” defense, the District Court didn’t buy it. In March 2011, US District Judge Deborah A. Batts ruled against Prince, Gagosian Gallery, Inc., and Lawrence Gagosian, finding that Prince’s use of Cariou’s photos was not fair use.
Citing to the case of another pop artist, the court pointed to the 1992 Rogers v. Koons case in which infringement was found (and fair use rejected) in another instance of artistic “appropriation.”
So, what’s an artist to do? Why appeal of course!
This is precisely what Prince did, and now, ladies and gentlemen, the briefs are in and we wait for a ruling from the Second Circuit. (Prince et al. v. Cariou, case number 11-1197.)
Cariou is arguing that fair use does not apply because Prince failed to use his photographs in any transformative way. Prince argues that the pieces were sufficiently transformative because they created something new with a different purpose from the original.
Now interestingly, Prince did not simply rephotograph Cariou’s photos. Prince’s work included collaged, enlarged, cropped, tinted or over-painted images which, he did not deny, had been taken from Cariou's book of photographs “Yes, Rasta.”
However, on the flip side, Prince testified that he “doesn't really have a message” to communicate when he makes art, and that he not transformed Cariou’s images in any way so as to effectively make a comment about them.
I find this a little surprising. I mean, agree with the defense or not, like the work or not, that seems to be precisely what the artist known as Prince is doing. If the artist himself is not make a statement or a comment or an observation, then why does the work itself have any value? It is like Roy Lichtenstein’s famous “comic book” images: if all he’s doing is copying at random images that are not intended to convey something to the viewer, why bother? Why is it art? Certainly, why pay $1M or more for it?
I would expect that turns out to be a tactical error, both in terms of the litigation and in terms of the value of the work.
I’m not taking sides in this one. Having been raised in and around the visual arts, I’m pretty accepting of a wide spectrum of creativity (even when I think it is ridiculously facile, like the works of Damian Hurst), because I’m in favor of encouraging rather than squelching art, artists, creativity, creative effort, etc. It’s all art to me, it just might be shitty art.
This seems to be the view taken by wider artistic community as well. Various museums and others filed amicus briefs arguing that the district court's ruling imperils appropriation art generally. Again, appropriation is nothing new. Look at the works of Warhol, Lichtenstein and Jasper Johns as three well respected examples of this. Are we really going to say artists can’t engage in such activity?
I hope not.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. His is resident in the firm’s Los Angeles and Irvine offices. He represents a wide range of artists (including visual artists, performing artists and musical artists), art galleries and collectors.
Prince is principally a painter and a photographer. He may be best known for his technique of “appropriating” photographs which he then “rephotographs” to create his works.
One example of this is his work involving photographs from Marlboro cigarette ads of the Marlboro Man. Prince's rephotographed these ads (thus incorporating the works of other photographers) to create his pieces, one of which sold at Christie's in New York for more than $1 million in 2005.
His works have been collected by major institutions, including the Guggenheim.
Shockingly, this practice of “rephotographing” did not sit well with some of photographers whose work appeared in Prince’s pieces. Photographer Patric Cariou is one such photographer.
In December 2008, Cariou filed suit against Prince, the Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications, asserting copyright infringement in some of the works Prince was showing (and selling) Gagosian’s shop.
Specifically, Cariou alleged that Prince had appropriated 35 of Cariou’s photographs some of which he claimed had barely been changed by Prince. In addition, Cariou alleged that Prince also made more than two dozen paintings that included Cariou’s images.
This is a problem?
Prince argued that his use of the photographs amounted to “fair use.”
As you know, the “fair use” defense is decided on a case-by-case basis. As the Supreme Court noted in its recent ruling in Golan v. Holder (Jan 2012):
[T]he fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).
Well, try as he might to sell the “fair use” defense, the District Court didn’t buy it. In March 2011, US District Judge Deborah A. Batts ruled against Prince, Gagosian Gallery, Inc., and Lawrence Gagosian, finding that Prince’s use of Cariou’s photos was not fair use.
Citing to the case of another pop artist, the court pointed to the 1992 Rogers v. Koons case in which infringement was found (and fair use rejected) in another instance of artistic “appropriation.”
So, what’s an artist to do? Why appeal of course!
This is precisely what Prince did, and now, ladies and gentlemen, the briefs are in and we wait for a ruling from the Second Circuit. (Prince et al. v. Cariou, case number 11-1197.)
Cariou is arguing that fair use does not apply because Prince failed to use his photographs in any transformative way. Prince argues that the pieces were sufficiently transformative because they created something new with a different purpose from the original.
Now interestingly, Prince did not simply rephotograph Cariou’s photos. Prince’s work included collaged, enlarged, cropped, tinted or over-painted images which, he did not deny, had been taken from Cariou's book of photographs “Yes, Rasta.”
However, on the flip side, Prince testified that he “doesn't really have a message” to communicate when he makes art, and that he not transformed Cariou’s images in any way so as to effectively make a comment about them.
I find this a little surprising. I mean, agree with the defense or not, like the work or not, that seems to be precisely what the artist known as Prince is doing. If the artist himself is not make a statement or a comment or an observation, then why does the work itself have any value? It is like Roy Lichtenstein’s famous “comic book” images: if all he’s doing is copying at random images that are not intended to convey something to the viewer, why bother? Why is it art? Certainly, why pay $1M or more for it?
I would expect that turns out to be a tactical error, both in terms of the litigation and in terms of the value of the work.
I’m not taking sides in this one. Having been raised in and around the visual arts, I’m pretty accepting of a wide spectrum of creativity (even when I think it is ridiculously facile, like the works of Damian Hurst), because I’m in favor of encouraging rather than squelching art, artists, creativity, creative effort, etc. It’s all art to me, it just might be shitty art.
This seems to be the view taken by wider artistic community as well. Various museums and others filed amicus briefs arguing that the district court's ruling imperils appropriation art generally. Again, appropriation is nothing new. Look at the works of Warhol, Lichtenstein and Jasper Johns as three well respected examples of this. Are we really going to say artists can’t engage in such activity?
I hope not.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. His is resident in the firm’s Los Angeles and Irvine offices. He represents a wide range of artists (including visual artists, performing artists and musical artists), art galleries and collectors.
Thursday, January 26, 2012
Kapow! Holy Batmobile, Batman!
Haven’t written in a while despite some really important rulings on, e.g. finding of personal jurisdiction based on social network activity, but the following has something that even those weighty and intellectually stimulating topics don’t have: Batman.
Cue Batman music. Ok, it was annoying enough then, kill the music (insert sound of needle scraping LP here).
Batman?
Yes, and more particularly, the Batmobile. Quite possibly the coolest car ever invented. Even you Ferrari drivers know it.
Back to our story.
The case is DC Comics v. Mark Towle et al (2:11-cv-03934), before Judge Ronald Lew in the Central District of California.
It seems that a custom carmaker who goes by the name of “Gotham Garage” decided to build replica Batmobiles. Hey, who could blame him? I want one! I like this guy already! Porsche? Who needs a Porsche? I want a Batmobile, too!
(Just a note: Gotham Garage also apparently builds other custom roadsters to look like iconic vehicles from popular TV shows and movies. Thus, if you wanted your ride to be – the beat up old horse drawn wagon from Bonanza, for example – this might be the shop to turn to.)
But alas, not everyone thought his business plan was such a great idea. Enter DC Comics (a hero in their own right, come on, we have to admit it). DC, ahem, owns the copyright to Batman and all his accoutrements. While DC may love the Batmobile as much as the rest of us, they weren’t too hip on Mr. Towle making replicas and selling them to discerning buyers, comme moi.
So they (or was it our Caped Crusaders?) sued. Copyright infringement. And trademark. And trademark counterfeiting. And unfair competition under the Lanham Act, and common law unfair competition. Hey, these guys are not messing around.
The defendant attempted to have the case dismissed on a 12(b)(6) motion (failure to state a claim). A creative argument, he said that useful articles like automobiles are not copyrightable. Judge Lew said no. He sided with the plaintiff which argued that “While automobiles (in their entirety) may be considered useful articles not protected by copyright, defendant’s motion utterly ignores the issue of separability of nonfunctional, artistic elements of plaintiff’s Batmobiles from the underlying vehicle”.
So, point for the Dynamic Duo. The court found the complaint plead sufficient facts, thus allowing it to move forward.
Next Bat-step? Towles will have to answer DC’s allegations that Towles’ full-size, drivable Batmobile replicas — which include both the version from the 60’s TV show (which is the one I want) and the version from the films infringe DC’s rights as the comic book publisher.
I think the time has come for a quote from Rodney King, with a minor addition of my own: “Can’t we all just get along?” And can’t I have one of the Batmobiles after DC takes possession of them? Hey, I was named a Southern California Super Lawyer, but I don’t even have a cape! At the very least, I should get a car!
Stay tuned. Same Bat Channel . . . ok, I’ll spare you that part.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. He is resident in the Los Angeles and Orange County offices and can be reached at jonathan.pink@bryancave.com. In addition to litigating copyright and trademark issues, he really wants a Batmobile.
Cue Batman music. Ok, it was annoying enough then, kill the music (insert sound of needle scraping LP here).
Batman?
Yes, and more particularly, the Batmobile. Quite possibly the coolest car ever invented. Even you Ferrari drivers know it.
Back to our story.
The case is DC Comics v. Mark Towle et al (2:11-cv-03934), before Judge Ronald Lew in the Central District of California.
It seems that a custom carmaker who goes by the name of “Gotham Garage” decided to build replica Batmobiles. Hey, who could blame him? I want one! I like this guy already! Porsche? Who needs a Porsche? I want a Batmobile, too!
(Just a note: Gotham Garage also apparently builds other custom roadsters to look like iconic vehicles from popular TV shows and movies. Thus, if you wanted your ride to be – the beat up old horse drawn wagon from Bonanza, for example – this might be the shop to turn to.)
But alas, not everyone thought his business plan was such a great idea. Enter DC Comics (a hero in their own right, come on, we have to admit it). DC, ahem, owns the copyright to Batman and all his accoutrements. While DC may love the Batmobile as much as the rest of us, they weren’t too hip on Mr. Towle making replicas and selling them to discerning buyers, comme moi.
So they (or was it our Caped Crusaders?) sued. Copyright infringement. And trademark. And trademark counterfeiting. And unfair competition under the Lanham Act, and common law unfair competition. Hey, these guys are not messing around.
The defendant attempted to have the case dismissed on a 12(b)(6) motion (failure to state a claim). A creative argument, he said that useful articles like automobiles are not copyrightable. Judge Lew said no. He sided with the plaintiff which argued that “While automobiles (in their entirety) may be considered useful articles not protected by copyright, defendant’s motion utterly ignores the issue of separability of nonfunctional, artistic elements of plaintiff’s Batmobiles from the underlying vehicle”.
So, point for the Dynamic Duo. The court found the complaint plead sufficient facts, thus allowing it to move forward.
Next Bat-step? Towles will have to answer DC’s allegations that Towles’ full-size, drivable Batmobile replicas — which include both the version from the 60’s TV show (which is the one I want) and the version from the films infringe DC’s rights as the comic book publisher.
I think the time has come for a quote from Rodney King, with a minor addition of my own: “Can’t we all just get along?” And can’t I have one of the Batmobiles after DC takes possession of them? Hey, I was named a Southern California Super Lawyer, but I don’t even have a cape! At the very least, I should get a car!
Stay tuned. Same Bat Channel . . . ok, I’ll spare you that part.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. He is resident in the Los Angeles and Orange County offices and can be reached at jonathan.pink@bryancave.com. In addition to litigating copyright and trademark issues, he really wants a Batmobile.
Wednesday, October 12, 2011
36th Annual Intellectual Property Institute in Dana Point
Ok, I usually don't shill for anybody, but this is a worthy event and, if you're wasting time reading my blog (and yes, George, I know you are), then you might as well know about a really good source of IP information. Namely, the 36th Annual Intellectual Property Institute.
This year the festivities will be held on November 10-12, in Dana Point. It does cost something -- but there are no cops at the door, so even if you're flat broke, super cheap, or both, you could still probably listen from hall -- or ask people what was said on their way out for any particular discussion. Will it be annoying if you do so? Yes. Will you be able to nab some free coffee at the same time? Yes? Does that make it worth it? Doesn't it?
In any event, I am inviting one and all to join me at the 36th Annual Intellectual Property Institute at the Marriott Laguna Cliffs Resort, in Dana Point, California, for excellent continuing legal education programs, networking, meals, fun. On top of all that, you can join in the celebration of the IP Section's IP Vanguard Award honorees: Jay Monahan @ Zynga, Adrian Pruetz @ Pruetz Law Group, Hon. Judge Kozinski @ 9th Circuit, and Eric Goldman @ Santa Clara University School of Law. (Side note: Eric is the person who first showed me the Internet -- so in a way, this entire blog is his fault.)
The Institute is a relative bargain according to the people who are trying to get you to by tickets, and there are steeply discounted resort rates (again, according to . . . .) See http://bit.ly/qHY03s for more information.
And please pass this invitation on to your colleagues and friends. Thanks.
This year the festivities will be held on November 10-12, in Dana Point. It does cost something -- but there are no cops at the door, so even if you're flat broke, super cheap, or both, you could still probably listen from hall -- or ask people what was said on their way out for any particular discussion. Will it be annoying if you do so? Yes. Will you be able to nab some free coffee at the same time? Yes? Does that make it worth it? Doesn't it?
In any event, I am inviting one and all to join me at the 36th Annual Intellectual Property Institute at the Marriott Laguna Cliffs Resort, in Dana Point, California, for excellent continuing legal education programs, networking, meals, fun. On top of all that, you can join in the celebration of the IP Section's IP Vanguard Award honorees: Jay Monahan @ Zynga, Adrian Pruetz @ Pruetz Law Group, Hon. Judge Kozinski @ 9th Circuit, and Eric Goldman @ Santa Clara University School of Law. (Side note: Eric is the person who first showed me the Internet -- so in a way, this entire blog is his fault.)
The Institute is a relative bargain according to the people who are trying to get you to by tickets, and there are steeply discounted resort rates (again, according to . . . .) See http://bit.ly/qHY03s for more information.
And please pass this invitation on to your colleagues and friends. Thanks.
Monday, May 9, 2011
More, Yes More!, On Rule 68
For no good reason, I'm adding still more information for you on Federal Rule of Civil Procedure, Rule 68. Why? What, you've got something better to read? The New Yorker perhaps. Relax this will only take a minute. Besides, I mention it because it recently came up (again), and it's information worth sharing.
Rule 68 can be an excellent tool in copyright cases, especially where you believe your client may have engaged in an act that will lead to a finding of infringement.
In such a situation, where you believe a judgment is likely to be rendered against you anyway, making a Rule 68 Offer of Judgment is a terrific way to keep the otherside's costs and fees -- which you may be expected to pay under Section 505 of the Copyright Act -- from accruing.
Make the offer early, and you cap the fees/costs if you make a good bet on: (1) the ultimate damage award and (2) the otherside's costs and fees to date.
This is because Fed. R. Civ. P. 68 provides that “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” In copyright actions, the term “costs” includes a prevailing party’s attorney fees. See, 17 U.S.C. § 505 (“the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”). Thus, a Rule 68 offer will cut off a prevailing plaintiff’s post-offer attorney fees if the judgment he or she receives is less than the defendant’s Rule 68 offer. See, Merek v. Chesney, 473 U.S. 1, 8-10 (1985) (holding that when underlying statute defines “costs” to include attorney’s fees, such fees are to be included as costs for purposes of cost shifting. The court thus concluded that plaintiffs “who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney's fees for services performed after the offer is rejected.”); see also William F. Patry, Patry on Copyright § 22:217 (“Rule 68 [can] be used as a sword against plaintiff to deny plaintiff his attorney's fees postoffer.”).
So in a nutshell, it works like this: You think it's likely you'll get tagged with infringement, but you think damages are worth no more than -- let's keep it simple and say $10,000. You think the fees and costs to date are minimal. Let's say $10,000. You therefore make your Rule 68 Offer for a skosh over $20K, call it $23. If plaintiff is foolish enough to reject that offer, and fails to do better than this figure at trial (measuring damages plus costs and fees as of the date the Rule 68 Offer was made), plaintiff's recovery of fees and costs is capped as of that date.
It's a neat tactic if it works. But then again, what isn't?
Jonathan Pink is Chair of the Internet and New Media Team at Bryan Cave, LLP. He is an intellectual property and commercial litigator resident in the firm's Orange County and Los Angeles offices. jonathan.pink@bryancave.com
Rule 68 can be an excellent tool in copyright cases, especially where you believe your client may have engaged in an act that will lead to a finding of infringement.
In such a situation, where you believe a judgment is likely to be rendered against you anyway, making a Rule 68 Offer of Judgment is a terrific way to keep the otherside's costs and fees -- which you may be expected to pay under Section 505 of the Copyright Act -- from accruing.
Make the offer early, and you cap the fees/costs if you make a good bet on: (1) the ultimate damage award and (2) the otherside's costs and fees to date.
This is because Fed. R. Civ. P. 68 provides that “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” In copyright actions, the term “costs” includes a prevailing party’s attorney fees. See, 17 U.S.C. § 505 (“the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”). Thus, a Rule 68 offer will cut off a prevailing plaintiff’s post-offer attorney fees if the judgment he or she receives is less than the defendant’s Rule 68 offer. See, Merek v. Chesney, 473 U.S. 1, 8-10 (1985) (holding that when underlying statute defines “costs” to include attorney’s fees, such fees are to be included as costs for purposes of cost shifting. The court thus concluded that plaintiffs “who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney's fees for services performed after the offer is rejected.”); see also William F. Patry, Patry on Copyright § 22:217 (“Rule 68 [can] be used as a sword against plaintiff to deny plaintiff his attorney's fees postoffer.”).
So in a nutshell, it works like this: You think it's likely you'll get tagged with infringement, but you think damages are worth no more than -- let's keep it simple and say $10,000. You think the fees and costs to date are minimal. Let's say $10,000. You therefore make your Rule 68 Offer for a skosh over $20K, call it $23. If plaintiff is foolish enough to reject that offer, and fails to do better than this figure at trial (measuring damages plus costs and fees as of the date the Rule 68 Offer was made), plaintiff's recovery of fees and costs is capped as of that date.
It's a neat tactic if it works. But then again, what isn't?
Jonathan Pink is Chair of the Internet and New Media Team at Bryan Cave, LLP. He is an intellectual property and commercial litigator resident in the firm's Orange County and Los Angeles offices. jonathan.pink@bryancave.com
Monday, April 25, 2011
Turns out I was Wrong . . . . Rule 68 and Attorneys Fees
After all this time . . . I had thought that FRCP Rule 68 was an excellent tool to hammer the plaintiff, even where the copyright defendant had in fact copied. This is because an argument exists that the recoverable "costs" under Rule 68 include attorneys fees. Thus, by making a Rule 68 offer early in the game, the defendant could shift the fees burden even if infringement was found (assuming, of course, the offer exceeded what plaintiff was able to recover at trial).
Opps. Turns out I was wrong, at least in part. Turns out there is a split in authority. I've been taking one side, while the 9th Circuit has taken the other.
In Ninth Circuit copyright actions, costs awardable pursuant to a Fed. R. Civ. P. 68 offer of judgment that exceeds plaintiff’s recovery at trial do not include a defendant’s post-offer attorney’s fees. This is because the Ninth Circuit has held that Rule 68 “costs” do not include a non-prevailing defendant’s post offer attorney’s fees when the underlying statute only awards attorney’s fees to a prevailing party. See, Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1031-32 (9th Cir. 2003). 17 U.S.C. § 505, the copyright provision dealing with attorney’s fees awards, provides that attorney’s fees may be awarded as a component of costs, but only to a prevailing party. 17 U.S.C. § 505 (“[T]he court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”).
Thus, because a defendant who is entitled to post Rule 68 offer costs is necessarily not the prevailing party (as the defendant is consenting to judgment), copyright defendants in this Circuit may not recover attorney’s fees as a component of costs. This view is also held by the First, Third, Fifth, Seventh, Eighth, Ninth, and D.C. Circuits. See, William F. Patry, Patry on Copyright § 22:215 (2011).
Opps. Turns out I was wrong, at least in part. Turns out there is a split in authority. I've been taking one side, while the 9th Circuit has taken the other.
In Ninth Circuit copyright actions, costs awardable pursuant to a Fed. R. Civ. P. 68 offer of judgment that exceeds plaintiff’s recovery at trial do not include a defendant’s post-offer attorney’s fees. This is because the Ninth Circuit has held that Rule 68 “costs” do not include a non-prevailing defendant’s post offer attorney’s fees when the underlying statute only awards attorney’s fees to a prevailing party. See, Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1031-32 (9th Cir. 2003). 17 U.S.C. § 505, the copyright provision dealing with attorney’s fees awards, provides that attorney’s fees may be awarded as a component of costs, but only to a prevailing party. 17 U.S.C. § 505 (“[T]he court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”).
Thus, because a defendant who is entitled to post Rule 68 offer costs is necessarily not the prevailing party (as the defendant is consenting to judgment), copyright defendants in this Circuit may not recover attorney’s fees as a component of costs. This view is also held by the First, Third, Fifth, Seventh, Eighth, Ninth, and D.C. Circuits. See, William F. Patry, Patry on Copyright § 22:215 (2011).
Tuesday, September 7, 2010
eBay Gets a Price Reduction
Ceux qui me connaissent savent que j’aime n'importe quoi français. En effet, mon hantise pour le pays et la culture est si ridicule que j'ai décidé d'écrire ce “post” en français. Vous pouvez me remercier maintenant.
Comme vous vous rappelez, il y a deux ans de Louis Vuitton Moet Hennessy a obtenu une victoire cuisante sur eBay, recevant un jugement €38.6 million (de $49.6 millions) basé sur de tiers ventes (quoiqu'énuméré sur eBay) des marchandises de luxe de contrefaçon de LVMH.
Spécifiquement, en 2008, la cour a ordonné qui eBay était responsable de l'infraction de marque déposée directe ou indirecte basée sur l'utilisation de son site Web de vendre les produits d'imitation de Louis Vuitton, de Christian Dior, de Guerlain, de Givenchy et de Kenzo. La cour a ordonné qu'eBay a eu une responsabilité intensifiée d'empêcher la fraude sous forme de ventes contrefaites sur son emplacement. (Notez-vous que c'est énormément différent du situation aus Etats-Unis, ou en eBay de Tiffany [2d Cir., Avril 2010], la cour a ordonné presque l'opposé.)
Bonnes nouvelles pour eBay! La semaine dernière, une cour française a ramené cette récompense à €5.7 million ($7.3 millions). Malgré cette reduction, la cour de Paris de l'Appel a confirmé la conclusion que eBay avait violé les marques déposées de LVMH par en listant et ventant des marchandises de contrefaçon.
Dans la mode française quintessencielle, eBay et le LVMH a déclaré l'acte une victoire absolue.
Jonathan Pink is a commercial litigator, and business attorney with a specialty in copyright and trademark infringement. He is also an unabashed Francophile. He can be reached – in French or English – at jonathan.pink@bryancave.com; 949-223-7173.
Comme vous vous rappelez, il y a deux ans de Louis Vuitton Moet Hennessy a obtenu une victoire cuisante sur eBay, recevant un jugement €38.6 million (de $49.6 millions) basé sur de tiers ventes (quoiqu'énuméré sur eBay) des marchandises de luxe de contrefaçon de LVMH.
Spécifiquement, en 2008, la cour a ordonné qui eBay était responsable de l'infraction de marque déposée directe ou indirecte basée sur l'utilisation de son site Web de vendre les produits d'imitation de Louis Vuitton, de Christian Dior, de Guerlain, de Givenchy et de Kenzo. La cour a ordonné qu'eBay a eu une responsabilité intensifiée d'empêcher la fraude sous forme de ventes contrefaites sur son emplacement. (Notez-vous que c'est énormément différent du situation aus Etats-Unis, ou en eBay de Tiffany [2d Cir., Avril 2010], la cour a ordonné presque l'opposé.)
Bonnes nouvelles pour eBay! La semaine dernière, une cour française a ramené cette récompense à €5.7 million ($7.3 millions). Malgré cette reduction, la cour de Paris de l'Appel a confirmé la conclusion que eBay avait violé les marques déposées de LVMH par en listant et ventant des marchandises de contrefaçon.
Dans la mode française quintessencielle, eBay et le LVMH a déclaré l'acte une victoire absolue.
Jonathan Pink is a commercial litigator, and business attorney with a specialty in copyright and trademark infringement. He is also an unabashed Francophile. He can be reached – in French or English – at jonathan.pink@bryancave.com; 949-223-7173.
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