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Activision And Infinity Ward Embroiled In Copyright Infringement Dispute

The apparent copyright owner of a story called November Renaissance — and through that story, a character named Cade Janus — is suing video game production companies Activision, Infinity Ward, and Major League Gaming Corp for the alleged theft and reproduction of the aforementioned character. Clayton Haugen says that his character Janus was reproduced almost exactly in a recently released Call of Duty game.

Here we go again!

Haugen says that his primary driver for creating that character was an eventual movie. He used a popular Twitch streamer named Alex Zedra to further refine that character, using her likeness to copyright a number of photographs he had taken. He used those photos, a biography of the character, and the story of the character to approach film studios. He also used the photos to sell calendars. He published the likeness to Instagram.

Haugen’s complaint alleges that the Call of Duty: Modern Warfare makers also hired Zedra — something that isn’t at all illegal. But if the other allegations are true, then what those makers did is illegal. According to Haugen, the video game companies asked Zedra to dress and pose exactly as she had in the previous photoshoot. Haugen says they even went as far as hiring the same makeup artist!

Haugen is demanding all the profits that are directly attributable to that infringement. That means a lot of lost revenue for Activision and the like.

In their response, the video game companies admit to most of the minor details when designing their own character named Mara. But they also said they “lack knowledge or information…[to] form a brief.” In other words, they’re not ready to wholly deny the accusations. They could be true. Or they might just be a money grab from someone who thinks he can win a case. Who knows?

The companies did, however, deny that they used Janus photographs to model their own character.

They wrote in their response, “A claim for infringer’s profits is an equitable one and is not triable of right by a jury. Furthermore, a claim for statutory damages is not triable of right by a jury.”

They also said they don’t believe Haugen is entitled to damages at all. Following their denials, the companies provided a number of legal excuses that might mean they wouldn’t have to pay damages even if Haugen’s claims were true. When you’re not sure what will work, why not fling enough crap at the wall that something is bound to stick?

They wrote, “Any use of Plaintiff’s copyrighted materials is protected by the First Amendment of the United States Constitution and/or 17 U.S.C. 107.”

For the record, the First Amendment does not protect those who steal copyrighted ideas. That’s not quite how it works.

There are, however, limits on when and how lawsuits can be brought to a court’s attention and then resolved — and Haugen may have jumped on that train far too late.

IP Laws Squirreled Away Into COVID-19 Package

Most people didn’t even notice any of the tiny itty bitty reforms squirreled away into the COVID-19 package that Biden’s administration passed in March, but one had major implications for IP law moving forward. It was called the Consolidated Appropriations Act, and it contained a small clause called the Copyright Alternative in Small-Claims Enforcement Act of 2020.

One of the biggest changes is how federal law approaches the pirating of TV, movies, and music through online platforms. The most important thing to know? If you get caught streaming copyrighted materials to turn a buck, you can be charged with a felony. That means you won’t be going to the county jail if they catch you — you’ll be going to federal prison, and maybe not for a short stint.

We previously mentioned a separate stipulation of the law, which allows for the creation of a new dispute resolution process — something that was sorely needed for copyright and IP law. 

Do you believe your copyrighted material was stolen or used without your consent? All you need to do is file a claim with the Copyright Claims Board, which is situated in the U.S. Copyright Office. This is for small claims only. The board is made up of three claims officers who will be appointed by the Librarian of Congress. The board will decide whether or not you have a solid case.

The good news is that this claims process does not require you to have an attorney. However, a defendant can opt out of the process so long as they do it within 60 days of receiving the notice. Failure to opt out means the defendant cannot fight the claim in front of a jury or in federal court.

The law also limits the types of discovery available to both plaintiff and defendant. Discovery might include documentary evidence, depositions, or written requests for additional information.

Netflix Poaching Lawsuit Could Result In A Changed Industry

To say that Netflix is under assault is an understatement. The popular streaming provider had deals with most major broadcast providers and has purchased the rights to stream many popular TV shows. But those same networks have started to launch their own streaming services, which means that content Netflix once relied upon is being sapped away over the years — and it now has to rely on its own original content to survive. So far, Netflix is doing more than holding its own. It’s dominating the streaming industry.

That’s why Netflix takes trademark and copyright infringement very seriously. All users can find information on the company’s policies on its platform or website. Last year, there were rumors that the Trump administration might sue Netflix over the trademark for Space Force, a branch of the military that the former president kick-started. But because the Netflix show is basically a parody, there’s little doubt that the outcome of that lawsuit would’ve been a dismissal. 

But trademark suits aren’t the only problem that Netflix is dealing with. One lawsuit argues that Netflix is poaching executives from other studios despite contractual obligations that would bar those executives from going elsewhere. Some acknowledge that lawsuits like these will end up transforming the industry.

An anonymous attorney who works for sexual abuse lawfirm Paul Mones PC said, “The entertainment industry has been plagued by sexual assault allegations for years, and more are coming monthly. It’s still reeling from that. The pandemic was another blow. More people started pirating content. And now there’s fighting to see who will win the streaming wars. It’s naive to think the industry won’t change as a result of this cascade of transformative events.

Injunctions in the poaching battle now prevent Netflix from recruiting executives who are bound by fixed-term contracts for Disney, the company that sued Netflix — which isn’t a huge surprise since Disney just launched a massive streaming service of its own, and became one of Netflix’s biggest competitors almost overnight.

But SAG-AFTRA is worried that the suit and subsequent appeals decision will affect how some producers can leverage actors in one market or another.

SAG-AFTRA briefs described the concerns: “George Clooney. Tom Hanks. Michelle Williams. Melissa McCarthy. Even the late Robin Williams. Why are some of Hollywood’s biggest stars relevant to a fight between two entertainment megaliths relating to the hiring of two corporate vice presidents?”

The brief continued, “Because the lower court’s decision in this case has potential significance far beyond the executive suite. Long before these critically and internationally acclaimed actors became film stars, they got their start on television. And long before these actors found fame, the California Legislature recognized that all workers, including actors, should be free to seek and obtain new employment.”

In other words, agreements like the ones that executives are bound by shouldn’t necessarily be held in high regard because they prevent competition. 

Ironhawk Smart Sync Lawsuit Revived On Appeal

Popular internet file sharing website Dropbox launched a feature called “Smart Sync” back in 2017. Smart Sync lets Dropbox users to view or move files via the cloud instead of downloading them directly to a computer’s hard drive. The feature is great for users who want to save space or avoid wasting time downloading huge files. But a Navy contractor you’ve never heard of called “Ironhawk Technologies” then sued Dropbox for trademark theft because it has its own feature with the exact same name.

When Ironhawk requested a jury trial to resolve the dispute, a Los Angeles federal court denied them the opportunity — but the 9th Circuit reversed the decision on appeal with a 2-1 opinion.

Ironhawk attorney Keith Wesley said, “We are grateful that the Court of Appeals reiterated its commitment to the reverse confusion doctrine and the protection of trademark rights of brands of all shapes and sizes.”

Ironhawk originally sued Dropbox based on the reverse confusion theory facet of trademark law, which iterates that a well-known trademark cannot be duplicated. For example, if a video game company unaffiliated with “Nintendo” tried to build a product or start a business called “Nintendo,” the reverse confusion theory would undoubtedly apply. However, it’s not certain whether or not enough people know about Ironhawk or it’s trademarked feature to confuse it with Dropbox’s. 

It’s also worth noting that reverse confusion theory does not apply when a product or service is wholly unrecognizable from the allegedly infringed upon trademark. For example, both Delta faucets and Delta airlines are very well known trademarks — but neither infringes upon the other because they’re completely different from one another. Ultimately, it will be left to a jury to decide whether or not Ironhawk is well-known enough for the theory to apply, or whether the Ironhawk feature is different enough from Dropbox’s to not apply.

Remembering The Tragedy At Chicago Law Office Wood, Phillips, Katz, Clark & Mortimer

Sometimes people forget that lawyers are just trying to make a living the best way they can — and that they are just people too! A senseless tragedy in 2006 reminds us of the constant threats that most publicized attorneys must endure on a routine basis. The worst part? The murders may have been committed after a truck driver tried to request a truck toilet patent. 

Any death in Chicago that is wrong receives media attention. But the killing of two patent attorneys and the mailroom clerk was a media sensation due to the harrowing nature of the story. After truck driver Joe Jackson was told that a patent for his proposed truck toilet idea had already been patented by someone else, he came to believe that one of the attorneys at the Wood, Phillips, Katz, Clark & Mortimer law offices took his money to deliver his requested patent to someone else. 

When Jackson tried to uncover more information, his calls were reportedly ignored and he was turned away by the office’s personnel. But he wasn’t done. He came back with a gun, knife, and hammer, and pointed his pistol at a security guard upon reentry. He forced the guard to escort him to the 38th floor, where patent attorney Michael McKenna worked — a man who didn’t even work for the firm. Jackson chained the doors to the office on that floor.

Jackson then shot McKenna, another patent attorney named Allen Hoover (also managing partner for the firm), and mail sorter Paul Goodson. The three men succumbed to their injuries. A paralegal was also shot in the foot, but she survived. Swat officers managed to shoot Jackson from outside the building after the man took hostages. 

Reverend C.L. Sparks had originally urged Jackson to seek legal counsel in order to protect his idea, advice which the man took faithfully. But after several years dealing with McKenna — and $25,000, part of which was provided for a retainer to protect the patent — McKenna told Jackson the idea had already been taken. It isn’t quite clear how or why Jackson decided that McKenna had taken advantage of him, nor is it clear if there was any truth in the allegations. 

Jackson’s son Darrin said that he believes his dad “just snapped.” He added, “I believe he was just frustrated.”

His niece Brenda said that Jackson believed his invention would change his life for the better: “He went to them, he trusted them. He said, ‘This is gonna pay off big.’”

According to authorities, Jackson didn’t even know who his victim, McKenna, actually was. The paralegal who was shot had been ordered to point him out so he could have his vengeance.

Firm managing partner John S. Mortimer said that the attack was “brutal and senseless,” and allowed staff to stay home the following Monday or gather to memorialize the dead. They were also provided with grief counseling.

 

Disney Could Lose Movie Rights After Lawsuit Defeat

The original writers of the 1987 horror-chase film Predator — a cult favorite starring Arnold Schwarzenegger — want the rights to the film back, and they’re suing Disney to win them. The legal battle ahead is expected to be long and arduous, but neither side plans to back down. Before Disney, Fox owned the rights to the movie. But then Fox was purchased by Disney.

Trademark lawyer Daniel Petrocelli and colleagues O’Melveny & Myers LLP filed a ruling that said, “There now exists between parties an actual and justiciable controversy concerning the validity of Notice One and 20th Century’s and defendants’ respective rights.”

Did you catch that?

No, neither did we. But don’t worry, we did the research later. At the time Disney purchased Fox Studios, there was another planned Predator movie in the queue. It never came, because of Section 203(a) of the Copyright Act.

Writers James and John Thomas made a declaratory relief filing in federal court: “In 2016, the Thomas brothers properly availed themselves of their right under Section 203(a) of the Copyright Act to recover the copyright to their literary material by serving and recording with the U.S. Copyright Office within the prescribed statutory window, a notice of termination with an effective termination date of April 17, 2021.”

When the brothers made the filing, they requested a jury trial to sort things out. Disney fought back. The brothers proclaimed: “For four and one-half…years after the Termination Notice was served, Defendants did not object to it in any respect. Then, in early January 2021, Defendants’ counsel unexpectedly contacted Plaintiffs’ counsel, contesting the Termination Notice as supposedly untimely, based on a theory that the 1986 Grant of the Screenplay underlying their Predator films allegedly qualified for the special, delayed termination time ‘window’ in 17 U.S.C. 203(a)(3), intended for ‘book publication’ grants.”

Like Predator? Don’t expect to see another one for many years, or at least while this courtroom debacle is ongoing.

Nintendo Lawsuit Targets Bowser: Yes, You Read That Correctly

A new Nintendo lawsuit seeks to recoup damages after a man named Gary Bowser allegedly violated its copyrights by creating hacks using Nintendo games, and then selling them for profit. Bowser leads the Nintendo Switch Team Xecuter, which is responsible for making these new games using Nintendo’s digital content, and was arrested in autumn of 2020. Nintendo decided the punishment wasn’t harsh enough. The civil case is meant to remedy that. 

Most people know all about media pirating of popular TV shows and movies, but game pirating is a problem for game makers as well. Older systems can be emulated easily, and the data from an individual game can be pulled from a cartridge, compressed, and then uploaded to the Internet as a ROM that anyone can download. Voila! An easy way to play old games. But newer systems can be emulated as well. It’s just not as simple.

And once hackers have a firm hold on this digitized information, they can alter it to make anything they want using the source material. Hackers have even created easy-to-use software programs that anyone can download to toy around with the data. For example, a popular program for the old-school Super Nintendo Entertainment System (SNES) game Final Fantasy VI (originally released as Final Fantasy III in the United States) allows users to alter character and enemy stats, equipment parameters, and even entire tilesets to create an entirely new world.

Needless to say, game developers don’t like it when hackers do this on the assumption it costs them money (although the hackers themselves contend that the increased publicity and new content only makes the original games even more popular and that game makers should get on board). 

Nintendo’s lawsuit would effectively gut all Xecuter operations, while forcing Bowser (the man) to pay a whopping $2,500 for each piece of hacked hardware he sold and an additional $150,000 for each copyright infringement charge. That means there’s no way that Bowser would ever be able to remain financially viable moving forward — bankruptcy is the almost assured outcome. 

Many people pirate video game media to “rent” games freely with the intention of purchasing real copies later — sometimes It’s What We Do to justify illegal activity. But it’s worth noting that Nintendo is a company that hasn’t retained its once-dominant hold on the video gaming industry. Rivals like Sony and Microsoft have gobbled up an even bigger piece of the pie since Nintendo’s Wii U release disaster ( a console no one wanted). This makes software sales very important to Nintendo.

These lawsuits have been growing in force over the last few years, and it’s clear that Nintendo is feeling squeezed by shifting gaming habits regardless of financial viability. For instance, more gamers are turning to smartphone gaming — and Nintendo has yet to really capture a very big audience or release any very popular games to compete with its biggest rivals.

 

Libera Asserts Massive Economic Loss Because Of Online Piracy

It’s hard to argue that online piracy affects the bottom line in the United States — after all, we have the highest GDP in the world (even though China is on track to be our successor, they’re not there yet). But for smaller countries with a fraction of our GDP, online piracy is even more pervasive — and therefore an even bigger problem. Liberia recently asserted that at least $2 million is lost annually through online piracy. 

The Copyright Society of Liberia (COSOL) wants to crack down on these pirates, and has launched an inspection into the scope of the problem with the goal of enforcing piracy laws (which are rarely enforced anywhere). 

COSOL began the hunt on February 17, 2021. The investigations are targeting businesses first to ensure compliance with intellectual property laws as they relate to artistic works like art, music, and TV or movies. COSOL also wants to properly enforce the Hologram Stamps Law, which mandates a majority of content come from Liberia itself. The cap on foreign-made content is currently set at 40 percent.

Clifford B. Robinson is the LIPO Deputy Director-General for Copyright. He said, “Pirate copies of artistic workers threaten artists and authors’ livelihoods by robbing them of their due percentage of profits and royalties. By working in partnership with the National Collective Societies of Liberia, the government is driving anti-piracy efforts through intelligence gatherings, and educations to combat the illegal trade of piracy from further flourishing, while protecting the creative industries.”

Hon. Robertson said, “The dramatic decline in revenues for content creators is the direct result of piracy — and the government is not taking this threat lightly. Piracy put innovation, creativity, and investment at risk much to the detriment of the content creators.”

And the problem has only gotten worse during the months of suspended production due to the threat of the coronavirus pandemic.

Do Intellectual Property Laws Get It Wrong On Disability?

IP law affects virtually every facet of life on earth — and while that might sound a wee bit of an exaggeration, we say it for a reason: information technology is becoming increasingly abundant, finding its way into our vehicles, kitchen appliances, even the very clothes we wear everyday. But there’s a glaring problem with IP law: inclusion. We often fail to recognize minority opinions on the legalities we rule upon all the time, and many industry analysts say that’s how we get so much wrong on a routine basis. 

One disability advocates group, IP Ability, is a community under the larger umbrella or IP Inclusive, and supports those who are both disabled and IP prodigies. The stigma of disability remains common in the United States, but IP Ability hopes to diminish that stigma over time by inviting underrepresented folks to join the team and find jobs related to intellectual property.

There’s good news, though. A recent law passed by former president Donald Trump helps reduce the waiting time for certain categories of disabled folks to receive benefits, which could help them jump back into job hunting (if able) faster. It was called the ALS Disability Insurance Access Act.

And The House recently passed the Equality Act, which is a landmark decision for LGBTQ+ rights (although it could still fall well short of the threshold needed to pass in the Senate). 

These implementations make it easier for underrepresented Americans to move on in industries that have made it difficult for them to get jobs. The Council for Disability Awareness is a nonprofit organization that helps the disabled find other means of work when traditional jobs fail them — and one of those alternative tasks includes intellectual property. Some of these jobs include specialists, docketing, client coordinators, managers, legal counselors, software developers, licensers, etc. Many of these positions can be coordinated from home.

Most people are underprepared and don’t realize that disability can happen at any time. Joshua said, “Being in my twenties at the time of the accident, protecting myself from disability was not on my mind.”

Joshua had been working a mechanical job when a 700-pound dumbwaiter fell on him, paralyzing him from the waist down. He said, “You never know from one day to the next what will happen…Protecting yourself from a disability should be on everyone’s mind, regardless of age.”

The CDA provides funds to initiatives aimed at educating the disabled — and the rest of the country about the capabilities of the disabled. The goal is to increase overall public awareness, but also to reduce financial hardship and increase planning ahead in the general population.

It’s not necessarily that IP laws themselves are designed to take advantage of the disabled. It’s that the disabled fall into a category that lawmakers rarely feel obligated to take seriously. That why disabled people have less access to jobs in the industry and reduced earning potential even if they make it through the door.

New Deal Reached Between King Saud University And Saudi Authority For Intellectual Property

A new deal between King Saud University (KSU) and the Saudi Authority for Intellectual Property (SAIP) might lead to new research and new legislation relating to intellectual property (IP) after it was co-signed by KSU President Dr. Badran bin Abdulrahman Al-Omar and SAIP head Dr. Abdulaziz bin Mohammed Al-Suwailem. The purpose of the deal is to open up both entities to the routine exchange of IP-related data and should provide a legal blanket for projects authorized by either organization.

The two organizations determined that the Arab world has fallen behind other developed nations, which makes it far more difficult to keep up with the fast pace of technology development. Holding onto trade secrets stolen by everyone else is even harder. The agreement should help the two strengthen existing training in the field while guaranteeing the design of new courses. 

KSU is known for supporting IP rights in Arab states. It also has nearly 1,500 patents of its own, which has resulted in a high ranking for overall number of patents in universities around the world. And it’s certainly the highest ranked university for patents among Arab nations. 

SAIP has around 450 patents as well, all of which should be protected by this agreement.

The agreement could also strengthen other organizations’ hold on their own property in the Arab world. The Arab Society for Intellectual Property (ASIP) is based in Munich, but its leaders understand the benefits of the new deal. And that’s great, since the point of their own organization was to establish an Arab entity in order to keep the IP profession organized. 

ASIP has been running since 1987, and has made strides in advancing IP protections not just in Arab nations but around the world. It also cooperates with international entities and governments around the world in order to do this more successfully.