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Ireland: Playboy v. EMN, High Court of Ireland, 2014 207 P, 19 February 2015

The plaintiff alleged infringement under the Copyright and Related Rights Act 2000 (CRRA 2000), breach of trademark, breach of contract, breach of moral rights, breach of confidence and interference with economic relations. The court held that under the statutory claim (s37 and S40 of the CRRA 2000) it is incumbent on the plaintiff to sufficiently mirror the language of the act.  The defendant is entitled to know under what part of the act the claim arises and whether any of the forms of making available under s40 have occurred. The plaintiff was ordered to submit the exclusive licence that it claimed in the works concerned and to reframe their submission using the language of the CRRA 20 [...]

The Netherlands: NSE v. Stichting BREIN, Court of Appeal of Amsterdam, ECLI:NL:GHAMS:2014:3435, 19 August 2014

The Court of Appeals held that a European Usenet Service Provider (‘USP’), ‘NSE’, was excluded from liability for infringement of copyright and neighbouring rights, pursuant to the provisions for mere conduit service providers and hosting service providers in Articles 12 to 15 of Directive 2000/31/EC (The E-Commerce Directive) as implemented into Dutch law. In the context of an Usenet service, an efficient Notice-and-Take-Down procedure is sufficient to establish an expeditious act to remove or disable access to the information in the situation where the USP obtains knowledge or awareness of copyright infringing material. Although NSE was excluded from liability, other measures c [...]

Germany: No Digitisation without Reproduction

benjamin-schuetzeOn 16th April 2015 the German Federal Court of Justice (BGH) delivered its final judgment in a lengthy legal standoff, which began its journey through the judiciary in 2009. The judgment is not yet available but is discussed in a press release here.  Since that time libraries and publishing houses have fought with one another over the meaning of access to digital content, the right to reproduction and traditional copyright exploitation schemes. The dispute at hand revolved around Sec. 52b of the German Copyright Act (Urheberrechtsgesetz), containing a statutory copyright limitation which permits certain institutions such as public libraries, museums and archives to make published works of w [...]

In breach of EU copyright law, Paris Court refuses to protect Mankowitz’s photo of Jimi Hendrix

poznati,bwjimihendrix,blackwhite,jimihendrix,geredmankowitz,hendrix-3d940e6f3d92f277d66e8d68a9b5d962_hThis ruling, rendered by the IP specialist section of the High Court of First Instance of Paris, breaches the most basic EU and French copyright law, by refusing copyright protection to an obviously original photographic work. This very surprising ruling is unfortunately just another ruling contrary to the elementary rules of copyright law that has been given by the High Court of Paris.

On 21 May 2015, the High Court of First Instance of Paris (Tribunal de Grande Instance) rendered a judgment in which it ruled that a famous photograph of Jimi Hendrix, taken by Gered Mankowitz, is not original and therefore not protected by copyright. The photograph is reproduced hereabove. The 3rd Chamber o [...]

USA: Garcia v. Google, Inc, United States Court of Appeals, Ninth Circuit, 12-57302, 18 May 2015

An actress in the controversial anti-Islamic film Innocence of Muslims lacked a copyright interest in her performance in the film and was not entitled to a preliminary injunction against the film’s display on YouTube, the U.S. Court of Appeals in San Francisco has held in an en banc opinion (Garcia v. Google, Inc., May 18, 2015, McKeown, M.). The en banc court dissolved a three-judge panel’s amended takedown injunction against the posting or display of any version of the film that included plaintiff Cindy Lee Garcia’s performance. The en banc court held that the injunction was unwarranted and incorrect as a matter of law and was a prior restraint that infringed the First Amendment. In [...]

The Netherlands: Photo on YouTube Channel, Court of Appeal of ‘s Hertogenbosch, ECLI:NL:GHSHE:2014:284, IEF 11605 and ECLI:NL:GHSHE:2014:2524, IEF 14082, 29 July 2014

This case in the Court of Appeal of ‘s-Hertogenbosch concerned the use of a photograph of a photo model by two rappers in one of their music videos. The video was uploaded to YouTube after which it was disseminated via their own website’s homepage and their YouTube Channel. Although the rappers were authorised to do so by the photo model in question, they did not have the consent of the photographer, i.e. the rightholder. Consequently, the photographer brought suit against the two rappers on the basis of copyright infringement.

In order to estimate her damages, the photographer provided the Court with an indicative rates list for photography assignments. Although the Court found t [...]

Portugal: Tryptic Shop Deco, Supreme Court of Justice of Portugal, 3952/08.9TJVNF.P1.S1, 17 December 2014

The Supreme Court held that pictures of tryptic paintings, as copyrightable artistic works, cannot be used as decoration of shops and on online catalogues without the authorisation of the owner of the copyright in those paintings.

A full summary of this case has been published on Kluwer IP Law

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UK: John Kaldor Fabricmaker v. Lee Ann Fashions, High Court of England and Wales, Chancery Division, [2014] EWHC 3779 (IPEC), 21 November 2014

A claim for infringement of copyright and design rights failed. There was no good reason to reject evidence that the fabric in question was created without sight of the claimant’s fabric; the similarities between the designs were not sufficient to infer that there had been subconscious copying.

A full summary of this case has been published on Kluwer IP Law

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Chesterton’s work still alive in Spain

Patricia MariscalA recent judgment by the Spanish Supreme Court draws a line under the legal dispute between the heirs of the British writer G. K. Chesterton and a Spanish publishing house concerning the term of protection applicable to the former’s works in Spain. The judgment declares that Chesterton’s works, just like those of any national or foreign author who had died whilst the Spanish Act of 1879 was in force, are protected in Spain for a period of 80 years post mortem auctoris. 

Protection of G. K. Chesterton’s works in Spain for a period of 80 years would not be quite so startling if it were not for the fact that in the United Kingdom, the writer’s country of origin, the rights in those wor [...]

Bulgaria: Commercial case No. 3824 of 2014, Court of Appeal of Sofia, 478, 11 March 2015

In this case, the Court of Appeal was required to determine the amount of damages payable when the fact of infringement was ascertained but there was insufficient evidence on the total amount of damages incurred.  The court held that the circumstances related to the type, nature and gravity of the infringement, the lost profit, any moral damages incurred and the revenue gained as a result of the infringement should all be taken into account, in accordance with the equity principle.

In this case, which concerned copyright infringement through the publication of two photographs in two issues of a daily newspaper, the court took into account the following: the significant circulation of t [...]

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