David Kluft

David Kluft

Foley Hoag LLP

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Authorship Credit for Scholarly and Creative Works: The Elusive American Attribution Right

What if were to tell you that I jointly authored this article with a colleague, but that I’m not going to give her any credit or attribution because I don’t feel like it? Can she sue me for copyright infringement? No, because...more

11/11/2015 - Authorship Copyright Copyright Infringement Intellectual Property Protection Right of Attribution

Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law

Last week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The...more

9/29/2015 - Communications Decency Act Copyright Copyright Infringement Copyright Litigation Critical Habitat Defamation DMCA PETA Popular Selfies Takedown Notices Young Lawyers

Ninth Circuit “Dancing Baby” Copyright Decision: A Quick Read for the Busy Practitioner

Earlier this week, the Ninth Circuit affirmed the Northern District of California’s denial of cross motions for summary judgment in Lenz v. Universal Music. In an opinion by Judge Richard Tallman, the Court held that the...more

9/17/2015 - Algorithms Copyright Copyright Infringement Copyright Litigation DMCA Fair Use Good Faith Misrepresentation Section 512 Takedown Notices Universal YouTube

Harry Potter Lawsuits And Where To Find Them

On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless...more

7/27/2015 - Copyright Copyright Infringement Copyright Litigation Fair Use First Amendment FTC Intellectual Property Litigation Intellectual Property Protection Popular Trademark Infringement Trademark Litigation Trademark Trial and Appeal Board Trademarks Young Lawyers

Copyright Law: The Silent © in Same-Sex Marriage

Last week, the focus of the legal world was not on intellectual property, to put it mildly. However, copyright law did have a small and somewhat silent, but still important, role in the Supreme Court jurisprudence that led to...more

6/29/2015 - Copyright Obergefell v. Hodges Popular The Copyright Act US v Windsor Young Lawyers

“Hollywood Circuit” Court Issues En Banc Decision in Garcia v. Google: No Copyright Protection for Fleeting Dramatic Performance

On May 18, 2015, the Ninth Circuit sitting en banc vacated its prior decision in Garcia v. Google. The prior decision, authored by Judge Alex Kozinksi, controversially held that an actress had standing to issue a DMCA...more

5/19/2015 - Actors Authorship Copyright DMCA Film Industry Garcia v Google Google Independent Films Movies Young Lawyers YouTube

Eleventh Circuit Mops the Floor With Invalidity Ruling: Faux-Hardwood Gets Copyright Protection

Last year, the District Court in Home Legend v. Mannington Mills gave three reasons for its holding that the designs on faux-hardwood flooring material, which are intended to look like real maple floors, were not subject to...more

5/18/2015 - Copyright Photographs

The Bermuda Triangle of Online Defamation: Copyright, Clickwrap and the CDA

We have written many times about attempts to use copyright law to do what defamation law can’t: take stuff down from the internet. Because Section 230 of the Communications Decency Act (“CDA”) prevents a defamation plaintiff...more

4/27/2015 - Clickwrap Agreements Communications Decency Act Copyright Copyright Infringement Corporate Counsel Defamation Defamation Act DMCA Internet Internet Service Providers (ISPs) Popular Young Lawyers

Carta de Error! Copyright Takedown Notice To iTunes May Give Rise to Misrepresentation Liability

Section 512(f) of the Digital Millennium Copyright Act makes parties who issue copyright takedown notices liable for any “knowing” misrepresentations in those notices. However, the Ninth Circuit in Rossi v. Motion Picture...more

4/20/2015 - Apple Copyright Copyright Infringement DMCA Film Industry iTunes Misrepresentation Motion Picture Industry Section 512 Takedown Notices Young Lawyers

Three’s Company But Two’s a Crowd: Theatrical Parodies of Copyrighted Works

In our Oscar litigation post a few weeks ago, we made a passing reference to MGM v. Showcase Atlanta Coop. Prods., Inc., 479 F.Supp. 351 (N.D. Ga. 1979). In that case, the Northern District Court of Georgia held that the play...more

4/8/2015 - Copyright Entertainment Industry Parody Television Shows

Default Is In Our Stars: Allegedly Overreaching Copyright Claimants Fail to Show

Taking legal action to enforce a copyright is often an expensive proposition so, before you go down that road, you better make sure you own the copyright in question. But what if you have already initiated copyright...more

3/10/2015 - Copyright Copyright Infringement Default Judgment

And the Lawsuit Goes to . . . An Oscar-Time Guide to “Best Picture” Intellectual Property Litigation

The film that wins the Best Picture Oscar this year is certain to attract more viewers and more box office receipts than it had before receiving the award. But Best Picture winners also tend to attract more lawsuits,...more

2/17/2015 - Copyright Copyright Infringement Film Industry Movies Popular

Sue-per Bowl Shuffle 2014: The Year in NFL-Related Intellectual Property Litigation

Heading into this year’s Super Bowl party season, there are two things every lawyer should be concerned about. First, why can’t your team get it together? Second, what do you do if you are asked to explain to your friends and...more

1/20/2015 - Athletes Blackhorse v Pro-Football Class Action Communications Decency Act Copyright Copyright Infringement Defamation DMCA IP License License Agreements NCAA NFL Popular Public Performance Rights Source Code TheDirty.Com Trademark Infringement Trademark Litigation Trademarks Video Games Video Recordings

Georgia State Academic Fair Use Decision Vacated by 11th Circuit: A (Relatively) Quick Read for the Busy Practitioner

Last Friday, the 11th Circuit Court of Appeals vacated and remanded the Northern District of Georgia’s 350-page fair use analysis of the electronic reserves practices at Georgia State University (“GSU”). Although this...more

10/20/2014 - Copyright Fair Use Trademarks Universities

“Textbook Dictionary” Definitions Not Fair Use, Says Mass. Federal Court

On September 26, 2014, the District of Massachusetts shot down a plan to develop a “textbook dictionary.” James Richards, inspired in part by the Autobiography of Malcolm X, developed a project to convert the dictionary from...more

10/6/2014 - Books Copyright Fair Use

Fox News v. TVEyes Copyright Fair Use Decision: A Quick Read for the Busy Practitioner

Last week, Judge Alvin Hellerstein of the Southern District of New York issued his opinion Fox News v. TVEyes. Fox News claimed that TVEyes’ media monitoring service was copyright infringement. TVEyes argued that it was fair...more

9/17/2014 - Copyright Fair Use Fox Television Stations Popular

Copyright Law Protects Course Syllabi From Disclosure Under Missouri Sunshine Law

Last month, the Missouri Court of Appeals, Western District, held that a public university was not required to turn over copies of certain course materials, including course syllabi, in response to a public records request....more

9/8/2014 - Copyright Popular Public Records The Copyright Act Transparency

U.S. Copyright Office Issues Public Draft of New Compendium

Last week, the U.S. Copyright Office announced the release of a public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the administrative manual for the Register of Copyrights. A significant...more

8/27/2014 - Copyright Copyright Office

When Can You Be Sued For Introducing Copyrighted Works At Trial? Almost Never, But Plaintiffs Keep Trying

Professor Nimmer once identified the “weakest infringement claims of all time” as those involving attempts by copyright holders to prevent their copyrighted work from being used as evidence against them in court. “It seems...more

8/25/2014 - Copyright Copyright Infringement Evidence Infringement

IP Protection For Novelty T-Shirts: Copyright Or Trademark?

No matter how sophisticated we are on the outside, on the inside everyone has a favorite novelty t-shirt buried deep in the recesses of their juvenile subconscious. Mine is one that says “Welcome to Philadelphia. Now Go...more

8/18/2014 - Copyright Trademarks

Highlights of Congressional Hearings on Copyright Remedies: Statutory Damages, Small Claims and Felonious Streaming

On July 24, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings on the subject of copyright remedies. Most of...more

8/13/2014 - Copyright Copyright Infringement

How Not To Market Your Business Online (Even If It Works): Claims Against Fake Review Sites And Stolen Obituary Photos Survive...

Despite celebrity endorsements from the likes of Dennis Miller and Alan Thicke, all that glitters isn’t gold when it comes to the marketing of precious metal investments. In March 2014, American Bullion, Inc., which is in the...more

8/12/2014 - Advertising Celebrity Endorsements Copyright Endorsements Fake Reviews False Advertising Lanham Act Motion to Dismiss Online Reviews Popular

Are “Concurrent Damages” A Good Idea For Copyright Law?

About a year ago, we wrote about the final chapter in the copyright saga of Joel Tenenbaum, the Boston University student who was found liable for copyright infringement by a District of Massachusetts jury, based on his...more

7/29/2014 - Copyright Copyright Infringement Infringement Willful Infringement

Highlights of Congressional Hearings on Copyright Moral Rights, Termination Rights, Resale Royalty, And Copyright Term

On July 15, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding a number of copyright issues,...more

7/28/2014 - Congressional Investigations & Hearings Copyright Legislative Agendas Proposed Legislation

Copyright Office: Aereo Likely Not A Cable Company

We previously reported on the Supreme Court’s recent decision on June 25, 2014 that Aereo, Inc.’s internet television service infringed the copyright of the programs being transmitted by the service. In holding that Aereo was...more

7/22/2014 - ABC v Aereo Aereo Broadcasting Copyright Copyright Infringement Internet Streaming SCOTUS Telecommunications The Copyright Act

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