Center for Internet Law – Portland

Recent Legal Developments

Copyright Ownership & Infringment

Media.net Advertising v. NetSeer, Inc.. U.S. District Court-California. 2016 WL 141707 (2016).
Holds website’s HTML code entitled to copyright protection, but not “look and feel” of website’s pages.

Plaintiff alleges defendant directly copied plaintiff’s hyper-text markup language for use on defendant’s advertising platform. Court holds HTML code can be copyrighted. Court concurs with defendant, however, that “look and feel” of plaintiff’s web pages not entitled to copyright protection. Court rules that integration of CSS into plaintiff’s HTML evidenced sufficient creative elements to make copyright protection available to resulting HTML.

Capital Records v. Vimeo. U.S. District Court-New York, 972 F. Supp. 2d 537 (2013).
Vimeo liable for copyright infringement because Vimeo employees viewed videos containing obvious copyright-infringing content before posting them online.

Defendant Vimeo distributes videos for online viewing. Vimeo employees viewed subject videos containing copyrighted music performed in its entirety. Court holds Vimeo employees therefore had “red flag” knowledge of copyright infringement in videos uploaded and distributed by Vimeo and Vimeo thus was not within Safe Harbor provisions of Digital Millennium Copyright Act applicable to mere internet service providers. Court holds Safe Harbor protection not available to internet service providers who “ turn a blind eye to red flags and obvious infringement” and that a “triable issue exists as to red flag knowledge ( because of) videos’ use of recognizable songs played essentially in their entirety and in unedited form.”

Marvel Characters v. Kirby U.S. Second Circuit, 726 F. 3d 119 (2013).
Second Circuit continues to expand scope of work-for hire ownership of final product by employer based on project supervision and creative contributions by employer

Expands factors deemed to create work-for-hire relationship between artist and employer rather than copyright ownership by primary creator. Court finds “inducement” by Marvel of Kirby to create artwork for specific Marvel comic books, Marvel’s right to supervise Kirby and exercise of that right, and Marvel’s creative contribution to Kirby’s work, even though limited, as well as Marvel’s right to reject finished artwork by Kirby, creates presumption Kirby’s works were made-for-hire for Marvel and Marvel, not Kirby, is owner of copyrights for said works. A dramatic expansion of when work-for-hire relationship will be held to exist. Illustrates potential importance of written agreement stating no work-for-hire relationship and listing relevant facts necessary to back-up this conclusion.

Gary Friedrich Enterprises v. Marvel Characters. U.S. Second Circuit 716 F. 3d 302 (2013).
Extends work-for–hire copyright ownership by employer based on employer contributions even when no written work-for-hire agreement.

Holds work-for-hire relationship can be created, despite provisions of earlier written agreement, “ex-post facto” and that test is whether work was actually work-for-hire at time of its creation. Court cites collaborative roles of Marvel employees, together with Plaintiff, in development of story and artwork and finds Ghost Rider comic book  therefore work-made-for hire with result that copyright is owned by Marvel. Another expansion of when work-for-hire relationship, and thus copyright ownership by employer, will be held to exist.

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