Copyright

Exploring Copyright Law in Free Guy: A Look at Source Code Theft

Posted on by Gavin Law Offices

Copyright law in the tech and gaming industry plays a significant role, and Free Guy offers an exciting glimpse into the complexities of source code theft. In this film, a major plot point revolves around the unlawful use of code and a legal battle over copyright infringement.

The story follows Millie, a game developer, on a mission to prove that the popular videogame Free City was built using code she developed for her own game, Life Itself. Millie launches a copyright infringement lawsuit because Free City’s developers failed to obtain her permission to use her code. According to U.S. copyright law, the unauthorized use or copying of code is illegal since code is considered an original expression of ideas and is therefore protected under copyright law.

Can Code Be Protected by Copyright?

In the movie, Millie plays Free City to find a scene proving her code was copied. However, in real-life cases, this wouldn’t be necessary. Since code is written in binary (zeroes and ones), a side-by-side comparison of the source code from Life Itself and Free City would likely reveal any similarities.

Legally, this would satisfy the substantial similarity requirement of copyright infringement. But it doesn’t stop there. Millie would also need to prove that the Free City developers had access to her original code. This is where the film’s plot thickens.

Proving Access to Code in Copyright Cases

The movie hints that Millie and her former work partner, Keys, had collaborated with Antwan—the CEO of the company behind Free City—while developing Life Itself. This prior connection could be enough to establish that Antwan had access to the original code, further supporting the copyright infringement claim.

By meeting both the access and substantial similarity criteria, Millie’s case would likely be strong in a real-world court setting.

 

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

Entertainment Law FAQs

Posted on by Gavin Law Offices

Are you an artist, musician, author, or party who publishes music or other content? You may need to brush up on some legal basics in the entertainment world. For #FAQFriday, we’ve compiled 3 common Q&A’s about entertainment law:

1. What is entertainment law?

Entertainment law encompasses a field of legal services for those in the entertainment industry.  These services may include intellectual property law (copyrights, trademarks, trade secrets, etc.), privacy law and rights of publicity, and general business law such as contracts.

2. What type of services do I need?

Each individual that works in the field of entertainment has unique legal needs and assets to protect.  An experienced entertainment attorney can tailor services directly to such needs and assets, including ensuring necessary copyright protections are in place, agreements are negotiated with your best interests in mind, takedown notices are filed if necessary, and more.

3. If I am not a singer, actor, or any type of “entertainer” or media creator, does any of this apply to me?

It might! Many businesses use media, such as music, videos, or artwork, or may hire entertainers at some point for their own marketing projects. An experienced entertainment attorney can help set entertainers and those that work with them up for success.

 

For more information check out our services or contact us today.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

Social Media and Your Intellectual Property

Posted on by Gavin Law Offices

Popular social media services such as Facebook and Instagram have billions of active users. In addition to allowing companies to share their personality and brand values, online platforms also function as impressive e-commerce marketplaces. This provides an opportunity for businesses to reach an impressive number of users. However, when individuals or businesses use social media, they may not be considering the following issues related to intellectual property:

  • Trademark infringement
  • Copyright Infringement
  • Rights of Publicity/Right of Privacy
  • Licenses to the social media service (i.e., Instagram, Facebook, etc.)

In terms of infringement (whether trademark or copyright), there are two scenarios you may encounter on social media. One involves someone infringing your own intellectual property rights and the other occurs when you infringe a third parties’ rights, whether intentionally or not. There are often several layers of intellectual property involved in a social media post. Common examples include music, photographs, videos, artwork, and brand names and logos. Understanding intellectual property ownership can be complicated, and it is best that you consult with an attorney to protect your work and avoid infringing anyone else’s as well.

Additionally, users of certain media services such as Instagram grant the platform a non-exclusive license to any material they post. Many users are not aware that they are agreeing to such a license when they consent to Instagram’s terms of use and start posting on the platform.

Further, using someone’s image or likeness online without their permission could implicate rights of publicity and/or privacy laws. Being aware of these intellectual property issues on social media is a helpful first step. Your business’s social media presence is an important part of your brand that deserves legal protection. Additionally, avoiding actions that infringe other’s intellectual property rights can help prevent financial and reputational harm. We can assist you with your legal concerns regarding you and/or your business’s online presence.

– Courtney Reigel, Esq. and Lily Taggart

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

Copyright Fair Use Cases that aren’t Google v. Oracle

Posted on by Gavin Law Offices

Fair use is a common yet complicated defense against copyright infringement. And it can be difficult to predict the outcome. Content creators often creatively transform existing copyrighted material for purposes like commentary, criticism, research, or education. Because such use of copyrighted material is ultimately in furtherance of the overall objective of copyrights, would-be infringers can evoke the fair use defense to avoid liability in certain narrow instances. What is and isn’t covered under fair use is often confusing and involves defining “transformative use” for different situations. This can be complex, albeit interesting due to the people and works involved. A roundup of cases sheds some light on recent developments in this area of copyright.

Dr. Seuss Enterprises, L.P. v. ComicMix, LLC

An unlicensed book titled Oh the Places You’ll Boldly Go! (“Boldly”) drew Dr. Seuss Enterprises to take action in 2016. The book was a mash-up of the popular Dr. Suess work Oh the Places You’ll Go! and science-fiction material from the Star Trek universe.

A trial judge initially ruled that due to the “highly transformative” nature of the work, the mash-up was allowed under fair use. However, on appeal to the Ninth Circuit, Dr. Suess Enterprises prevailed on its copyright infringement claim. ComicMix, LLC, the entity behind Boldly, argued that the work was a parody, i.e. commentary and criticism of Dr. Suess’s original work. The Ninth Circuit rejected this defense finding that Boldly was not a transformative use, but merely a “repackaging” of the Dr. Suess world for commercial gain.

This case drew attention from those in the copyright arena since it helps clarify the Ninth Circuit’s views on protection of mash-ups. While ComicMix argued that the combination of elements from the two distinct creative works was inherently transformative, the Ninth Circuit strongly disagreed, finding that all four factors of the fair use test weighed in favor of Dr. Suess Enterprises.  This is a notable decision and content creators in the mash-up space should proceed with caution.

The Andy Warhol Foundation v. Goldsmith

What do Andy Warhol, Prince, and a 1984 issue of Vanity Fair have to do with intellectual property in 2021? A whole lot more than you might expect. These were the subject of a recent ruling by the U.S. Court of Appeals for the Second Circuit that, like the Dr. Suess case above, drew a narrow boundary around transformative use. In this case, the court determined that Warhol’s use of a famous photograph in his artwork did not meet criteria for a fair use defense.

Lynn Goldsmith is a prolific professional photographer known primarily for her work with celebrities and musicians, among other achievements. In 1981, she took a series of portrait photographs of Prince in her studio. Vanity Fair legally used one of these photographs as an artist reference in 1984, and that artist happened to be Andy Warhol. Warhol subsequently made several more works from the photograph without Goldsmith’s knowledge.

After Prince’s passing in 2016, Goldsmith learned about Warhol’s unlicensed use of her work. Soon after, she asserted a copyright claim. The Andy Warhol Foundation contended that the works were not infringement, and the district court agreed. The court reasoned that Warhol’s works constituted transformative use of Goldsmith’s photographs in part due to their immediate recognizability as a ‘Warhol.’  Upon appeal, the Second Circuit reversed the original decision, reasoning that the work did not constitute transformative use. Notably, the opinion included the distinction that if they were to uphold this ruling based on Warhol’s recognizability that it may create a “celebrity-plagiarist privilege.” Like the Dr. Seuss case, this decisions narrows the availability of a fair use defense.

Georgia v. Public.Resource

Public.Resource is a nonprofit advocacy group that focuses on making public domain content accessible to everyone. The group is particularly invested in making United States Federal Government documents accessible, often through digitizing records. Generally speaking, government produced materials are in the public domain. However, Georgia v. Public.Resource brought to light questions surrounding how states should use copyright. The State of Georgia published some state code online, but annotated versions were only available to paying users. Public.Resource spread these annotated – and copyrighted – versions online without permission, which led Georgia to sue them in 2015.

The Eleventh Circuit ruled in favor of Public.Resource, reasoning that the codes were part of state law and therefore could not be copyrighted. The state assembly of Georgia appealed this decision to the Supreme Court. In April 2020, the Court ruled in agreement with the Eleventh Circuit that Georgia does not have copyright over its legal code. The majority opinion held that copyrighting official works of the Georgia legislature could deprive citizens the full knowledge of the laws.

Do these recent rulings change the nature of Fair Use?

Many in the field are looking to these and other relevant rulings to see what can be garnered about the nature of fair use. Unfortunately, as can be seen here, there isn’t a one-size-fits-all approach to determining what is and is not fair use. With factors that must be analyzed on a case-by-case basis, fair use defenses are difficult to assess and content creators should not assume they have a viable defense when using another party’s content. If you’re concerned about infringement, contact Gavin Law Offices today.

 

Interested in copyright? Read here!

 

Hidden Risks of the Side Hustle

Posted on by Gavin Law Offices

If you’ve ever searched online for ways to make extra money, you’ve likely come across a multitude of “side-hustles.” The side hustle has become an increasingly trendy topic, especially with the recent changes in remote work. These ways of increasing your cashflow can be benign, but several popular avenues come with hidden risks.

Domain Name Marketplace

You may be thinking that it’s profitable to buy and sell domain names. That can be true! But you face risks in that process that you need to be aware of. Namely, if you are purchasing a domain name that is valuable specifically because it trades on the brand of a well-known company, you could be infringing someone’s trademark, violating anti-cybersquatting laws, and generally making a lot of people really angry.

Buying and selling domain names is also referred to as domain flipping. This is a side hustle because people can buy domain names from registrars such as GoDaddy and attempt to later resell them for a profit. Whether the flipper builds an actual website with the domain is up to them. “Domain parking” refers to flippers that do not build a site tied to the purchased domain(s). Another strategy is to invest in the site and increase traffic to make it more valuable. This practice can be lucrative – investing.com was sold for $2.45 million in 2012. But like most headline grabbing stories, it’s not as safe or simple as it sounds.

One of the major risks with purchasing domains is the potential to infringe on someone’s protected intellectual property. Even with research, you could purchase a domain name that is too similar to an existing brand and wind up paying the price. It’s a good idea to consult a lawyer to make sure a domain name doesn’t gain value from an existing source.

Finally, domain flippers must be aware of the dangers of cybersquatting. Although cybersquatting as a practice is often intentional, even unintending flippers can violate anti-cybersquatting policy. The Anticybersquatting Consumer Protection Act covers a range of domain buying and selling practices that could get side hustlers in real trouble.

Options for Trademark Owners

Cybersquatters – and potentially unknowing flippers – commonly obtain exact or confusingly similar domain names to protected marks. Since infringement is so frequent, it’s important to monitor your protected property. An experienced legal team can build the best strategy for your situation and help you keep an eye on the marketplace.

Trademark owners worried about potential infringers or cybersquatters have options. There are different types of actions mark owners can take if they find out a domain registrant is making money off of the owner’s mark. The general first course of action is to send a cease-and-desist letter. This addresses trademark ownership, how the domain name is infringing and causing damage, and your willingness to take the appropriate legal action if the infringement does not stop. If no action results from a cease-and-desist letter, you may wish to involve an attorney who can guide you and implement the correct course of action to stop the infringement.

Side Hustle Risk: Creative Infringement

People can make a lot of money selling and designing creative t-shirts, but you are better safe than sorry when it comes to designing shirts that are valuable because someone else has created the content it is based on. Using online platforms such as Etsy or Instagram means that your activity is subject to federal regulation. Goods that use characters, slogans, or even inspiration from protected works risk both trademark and copyright infringement.

Using the content of businesses commercially without express permission or license is trademark infringement. A common example is personalized goods with college or university logos. These are protected intellectual property so commercial use on your t-shirts without permission is infringement. Another example is fan gear for professional sports teams. A quick search of these online marketplaces shows plenty of stores using infringing material which might make you feel safe. However, just because other stores are selling these doesn’t mean it’s legal. Or the the trademark owner won’t shut that store down. The risk of infringement outweighs any potential gain from unauthorized use.

This type of side hustle also risks copyright infringement. T-shirts with popular tv characters or quotes from a new bestselling movie may fly off your shelves, but remember: their value comes from someone else’s work. And federal copyright infringement claims come with a hefty price tag.

Another common mistake is using pictures from Google. Without checking the source, it’s highly likely that you do not have permission to use that property commercially. No matter what good you’re interested in creating and selling, make sure it’s your original design. If what you’re selling gains value from established content – and you don’t have permission to use it – think twice. Like trademark infringement, copyright infringement can lead you into a mess of legal trouble.

To sell or not to sell

The public domain refers to a collection of works without exclusive intellectual property rights. For instance, the works of William Shakespeare are in the public domain. This means that if someone wanted to do a theater reenactment of Shakespeare’s work, they wouldn’t have to have a license or permission to do so unlike a copyright protected work.

Another type of side hustle involves publishing work from the public domain. There’s always a demand for classics such as Little Women, Treasure Island, or The Great Gatsby, which entered the public domain as of January 1, 2021. Entrepreneurial side hustlers have filled this demand by turning these public domain works into e-books on platforms such as Amazon Kindle. Due to the lack of copyright protection of works in the public domain, infringement can disappear if you are using or inspired by works in the public domain. There are enterprises which have successfully used this hustle – such as the man who sold 64,000 Anne of Green Gables e-books.

However, if you’re thinking this is the new trick for you, don’t dive in too fast. Calculation of the time a copyright is active can be complicated. One version of a work may be in the public domain, but another is not.  It’s important to err on the side of caution and contact a lawyer to be safe if you feel conflicted. No matter what side hustle you’re thinking of pursuing, always do your research and be aware of the hidden risks. If you’re a trademark or copyright owner worried about potential infringers, remember you have options.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

– Kat Gavin, Esq.