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© 2012 Lathrop & Gage LLP Presented by: Lincoln D. Bandlow, Esq. Lathrop & Gage LLP 1888 Century Park East, Suite 1000 Los Angeles, CA
© 2012 Lathrop & Gage LLP Publisher Liability Defamation Right of Privacy Copyright Infringement Trademark Infringement Idea Submission
© 2012 Lathrop & Gage LLP Defamation 1.Publication 2.of a defamatory statement 3.that is “of and concerning” plaintiff 4.that is false 5.that is made with the requisite degree of fault 6.Damages
© 2012 Lathrop & Gage LLP Privacy Torts Common Law of Privacy – Article written in 1890, Harvard Law Review, by Warren and Brandeis. Right to be let alone. Today - most states either recognize common law privacy rights, or have statutes covering such rights. Four torts of invasion of privacy – Intrusion upon the plaintiff's physical and mental solitude or seclusion – Public disclosure of private facts. – Publicity that places the plaintiff in a false light. – Appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness. (Right of publicity).
© 2012 Lathrop & Gage LLP Intrusion Focus is on newsgathering behaviors rather than what is published. Elements of Intrusion claim: – Intentional intrusion (physical or otherwise) – on the private affairs or concerns of another – done in a manner that is highly offensive to a reasonable person.
© 2012 Lathrop & Gage LLP Private Facts Elements: Public disclosure Of a private fact Which would be offensive and objectionable to a reasonable person Which is not of legitimate public concern – If a matter of public record, by law a “matter of public concern.”
© 2012 Lathrop & Gage LLP False Light – Similar to defamation – Elements: Giving publicity To a false statement That is of and concerning the plaintiff Which places the plaintiff in a false light highly offensive to a reasonable person Made with the requisite degree of fault Damages
© 2012 Lathrop & Gage LLP Right of Publicity Claim stems from the unauthorized use of person’s name, voice, likeness or identity (including sound-alike) Variety of legal claims can be asserted – Common law and statutory right of publicity claims – Lanham Act claims – Common law unfair competition California and many states recognize post mortem right of publicity
© 2012 Lathrop & Gage LLP Right of Publicity Basic elements: – Defendant’s use of plaintiff’s identity to defendant’s commercial or other advantage – Lack of consent – Damages Actual damages (lost licensing fee) Punitive damages Profits Attorneys fees
© 2012 Lathrop & Gage LLP Copyright Infringement When does copyright protection attach to a work? – Copyright protection subsists from the time the work is created in a fixed form – No need to register or take action
© 2012 Lathrop & Gage LLP Copyright Infringement Copyright owner has five basic exclusive rights: – right to reproduce (copy) the work – right to make derivative works (adapt) based on the original; – right to distribute (by sale, license, rental, etc.) to the public copies of the work – right to perform the work publicly – right to display the work publicly
© 2012 Lathrop & Gage LLP Copyright Infringement How long does copyright last? – For works created after January 1, 1978: the term is life of the author (or last surviving author in case of a joint work) plus 70 years; or In case of a work made for hire, 95 years from first publication or 120 years from date of creation, whichever is shorter – For works created before January 1, 1978: Generally, for works published between 1923 and December 31, 1977, the duration is a first term of 28 years and a renewal term of 67 years for a total of 95 years. But it can get complicated (notice, registration issues) – call the lawyer!
© 2012 Lathrop & Gage LLP Copyright Infringement Definition of infringement is simple – it is any violation of one or more of the aforementioned exclusive rights “Strict Liability” scheme: no state of mind requirement for infringement – Lack of intent may be relevant to reducing damages, but is no defense to liability
© 2012 Lathrop & Gage LLP Copyright Infringement – Fair Use Section 107 enumerates four factors: – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; – (2) the nature of the copyrighted work; – (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and – (4) the effect of the use upon the potential market for or value of the copyrighted work.
© 2012 Lathrop & Gage LLP Trademark Infringement / Dilution Trademark infringment No need for registration Likelihood of consumer confusion Dilution – Tarnishment or blurring
© 2012 Lathrop & Gage LLP THANK YOU! Presented by: Lincoln D. Bandlow, Esq. 16
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