David Kluft

David Kluft

Foley Hoag LLP

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Catholic Priest Permitted To Conceal Non-Privileged Nature Of Defamatory Communication Until Statute Of Limitations Runs

In a recent unanimous decision in Harrington v. Costello, the Massachusetts Supreme Judicial Court (SJC) held that the statute of limitations had run out on a Catholic priest’s defamation claim against his colleague, even...more

4/21/2014 - Defamation Fraud Statute of Limitations

New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All

Many lawyers smirked and scoffed a few months ago when the popular press began touting the Courtney Love “Twibel” trial as a “landmark” case that would set a “major precedent.” In fact, as discussed further elsewhere, it was...more

4/21/2014 - Defamation First Amendment Libel Twitter

Taxation Of Copyright Sales: Ordinary Income Or Capital Gain?

Tax day presents several interesting questions for copyright holders, not the least of which is how the Internal Revenue Service (IRS) will treat income from the sale or exclusive license of a copyright. If a copyright is a...more

4/14/2014 - Capital Gains Corporate Taxes Income Taxes IRS

Can Private Photos Be Used In Political Ads Without Permission? Colorado Court Rejects Gay Couple’s Misappropriation Claim;...

When we upload family pictures to the internet, we understand that, in theory, anyone in the world might download them and use them for some nefarious purpose. However, we usually take comfort in the fact that most of us...more

4/8/2014 - Advertising Copyright Misappropriation Right of Publicity

Does The First Amendment Allow Journalists To Lie To Their Subjects? U.S. Senator Accuses Documentary Film Makers Of Fraud

On April 1, 2014, West Virginia Senator Joe Manchin issued a press release accusing Adroit Films of fraud. Manchin had agreed to be interviewed by the media company for a documentary about the Upper Big Branch mine disaster,...more

4/7/2014 - First Amendment Fraud Journalists Lying Trucking Industry

Highlights of Digital Millennium Copyright Act Congressional Hearings

On March 13, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding the copyright infringement notice...more

4/4/2014 - Copyright Copyright Infringement DMCA Takedown Notices

Copyright Claims Based on Submission of Prior Art to Patent Office Finally Dismissed: Were They The “Weakest Infringement Claims...

Copyright Claims Based on Submission of Prior Art to Patent Office Finally Dismissed: Were They The “Weakest Infringement Claims of All Time”? In April 2012, we reported on four copyright lawsuits filed by the American...more

3/31/2014 - Copyright Copyright Infringement Infringement Prior Art

Copyright Office to Study Music Licensing

The United States Copyright Office has announced the initiation of a study of the effectiveness of existing methods of music licensing. Three types of licenses were mentioned in the announcement: (1) compulsory licenses for...more

3/28/2014 - Copyright Copyright Office Licenses Licensing Rules Music

District Court Allows Claims to Proceed Against Ripoffreport.com For Copyright Infringement And “Unfair or Deceptive” Acts In...

We previously reported on the unique cyber dilemma faced by Richard Goren, a Massachusetts attorney. Back in 2012, a disgruntled former client of Goren’s logged onto the consumer review site, and posted an outlandish – and...more

3/26/2014 - Copyright Copyright Infringement Online Reviews

EXCELLENT Political Ad Removed For Copyright Infringement

Illinois Governor Pat Quinn’s reelection campaign appears to be based on a simple message: “Do you want C. Montgomery Burns Representing You in Springfield?” Yes, he means that C. Montgomery Burns. Yesterday, Quinn began a...more

3/24/2014 - Advertising Copyright Infringement Political Campaigns

CafePress Tchotchkes May Not Get Digital Millennium Copyright Act Protection

For those of us who like customized tchotchkes, CafePress is a marvel. You can take any photo or message you like, use the CafePress website to electronically slap it on a t-shirt (or keychain, iPhone case, etc.), and then...more

3/24/2014 - CafePress Copyright DMCA

Antitrust Claims Against SESAC Copyright Licenses Permitted To Proceed

Performing rights organizations (PROs) are entities that issue licenses to, and collect royalties from, television stations and other parties who wish to perform or dylanbroadcast copyrighted musical compositions. There are...more

3/18/2014 - Antitrust Litigation ASCAP Copyright Royalties SESAC Television Programming

Are You There, Copyright Office? It’s Me, First Circuit! Can Composers Deposit Infringing Musical Works In Place of The Original?

Copyright law usually has little patience for plaintiffs who don’t have a copy of their original work to deposit with the Copyright Office. For example, in Seiler v. Lucasfilm, a plaintiff who claimed to have created the...more

3/12/2014 - Copyright Copyright Infringement Copyright Office Football Music

Fox News Reports Copyright “Attack on Christians” – The Fair and Balanced Use Defense

Fox news recently reported on a dispute between Gulfport, Mississippi resident Kelly Taylor and her local Walgreens pharmacy. Ms. Taylor, using Walgreens’ online photo service, attempted to print out a few pages of the Bible...more

3/10/2014 - Copyright Copyright Infringement Fair Use Fox Television Stations Religious Discrimination Walgreens

“Munger Games” Political Copyright Case Fails to Survive Summary Judgment on Fair Use

On February 26, 2014, the Northern District of California issued its opinion in Dhillon v. Does 1-10. Judge Susan Illston held that the use of a political campaign photograph by one’s political enemies is fair use....more

3/10/2014 - Copyright Copyright Infringement Fair Use

Nine Thoughts On The Ninth Circuit’s “Innocence of Muslims” Copyright Decision

By now, you’ve probably heard the agonized shrieks of your friendly neighborhood copyright lawyer, decrying the Ninth Circuit’s opinion Garcia v. Google. If you haven’t had the time or inclination to read the opinion, here is...more

3/3/2014 - Copyright Google Independent Films YouTube

Skippy v. Skippy: The Great Peanut Butter Trademark Wars

According to the National Peanut Board, March is not only National Peanut Month, but it contains National Peanut Butter Lover’s Day and National Peanut Cluster Day. That makes March a good time to remember one of the longest...more

3/3/2014 - Trademark Litigation Trademarks

Third Circuit Attempts to Untangle Defamation and False Light Invasion of Privacy

CaptureIn Graboff v. American Academy of Orthopedic Surgeons, the Eastern District of Pennsylvania found that the defendant’s statement was not defamatory but was a false light invasion of privacy (“false light”). The...more

2/26/2014 - Defamation False Light Invasion of Privacy

“Facebook Said I Could” Defense Fails to Justify Digital Millennium “Trademark” Notice

CrossFit, Inc., the fitness training company, licenses its trademarked name and goodwill to over eight thousand affiliates worldwide at $3,000 per year per affiliate. When non-affiliate Jenni Alvies began posting on Facebook...more

2/24/2014 - Crossfit Trademark Litigation Trademarks

“Please Sir, I Want Some More” Rules: U.S. Copyright Office Considers “Orphan” Works Legislation

The U.S. Copyright Office has called for public comment on potential legislative solutions to the problem of orphan works under U.S. Copyright law....more

2/19/2014 - Copyright Copyright Office Orphan Works

A Presidents Day Copyright Story: George Washington And The “First” Fair Use Case

George Washington is responsible for a lot of “firsts.” For example, he was the first President, the first Commander-in-Chief of the Continental Army and the first guy to have the George Washington bridge named after him. But...more

2/17/2014 - Copyright Fair Use

Crimes of the Heart: A Trademark Valentine To Betty Boop

Betty Boop, the cartoon character created by Max Fleischer in 1930, has always been associated with the trappings of Valentine’s Day. She is frequently depicted on merchandise alongside symbols of love, especially the heart...more

2/10/2014 - Aesthetic Functionality Legal History Trademarks

Fixation by Legal Fiction: Did the Second Circuit’s Fair Use Ruling For Bloomberg Leave Open A Pandora’s Box for Copyright Law?

Swatch imageAbout ten years ago, I saw an attorney argue a hopeless criminal appeal. He began his remarks with: “Your Honors, I know I’m going to lose this case, but how I lose it is very important.”...more

2/4/2014 - Bloomberg Inc. Copyright Copyright Infringement

Jury’s Verdict in Madden Football Copyright Case Overturned

We previously reported on Robin Antonick’s copyright claim against Electronic Arts, Inc. (“EA”) over the software for the Apple II John Madden Football game. Antonick didn’t have a copy of his original source code at the time...more

1/31/2014 - Apple Copyright Infringement Electronic Arts Gaming Sega Software Developers

Delaying Bull: The Supreme Court Hears The Raging Bull Copyright Laches Case

On January 21, 2014, oral arguments were held in the Supreme Court case of Petrella v. Metro-Goldwyn-Mayer, Inc., which concerned the copyright to the story underlying the film Raging Bull. We previously discussed this case...more

1/29/2014 - Copyright Copyright Infringement Laches MGM Petrella v. MGM SCOTUS

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