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Archive for the ‘Intellectual Property’ Category

Using a Picture That Someone Else Took – You Could Be Facing a Copyright Claim

Posted on: June 4th, 2021

By: Neil Hartzell

United States copyright law protects “original works of authorship fixed in a tangible medium and the protection is available to published and unpublished works.” The law is codified in Title 17 of the United States Code.  The case of Choobeck v. Gurzanski, U.S.D.C. Central District California, March 16, 2021, illustrates the issues that arise when someone uses somone’s copyrighted work. In 2020, a photographer took certain photographs of young people in bathing suits. Another person obtained copies of those photographs and in September and October of 2020, posted those photographs on that person’s social media accounts including Twitter. The individual who posted the photographs allegedly did so behind paywalls. (A method used to restrict access to content via a paid subscription or purchase.)

The photographer learned that his photographs had been posted and then in March 2021 registered them with the United States Copyright Office. He then filed suit claiming copyright infringement, injunctive relief and damages.

Copyright is automatically granted to an author of an original work. Thus, one does not need to register the copyright in order to gain copyright protection. But, subject to certain exceptions, registration must occur before suit can be filed, 17 U.S.C. § 411(a). With some limited exceptions, federal courts have exclusive jurisdiction for copyright claims. Once the copyright is registered, a suit can seek injunctive relief and recovery for actual damages and any additional profits of the infringer. Alternatively, statutory damages are available up to $750-$30,000. Statutory damages for willful infringement can be up to $150,000, 17 U.S.C. § 504.

While there are a number of defenses to a copyright claim, beware—using someone else’s work without permission can expose you to copyright liability.

For more information, please contact Neil Hartzell at [email protected].

Trademark Battle Questions Meaning of “Beer”

Posted on: May 27th, 2021

By: Ben Dunlap

What is the difference between beer and bubbly water? This is not a riddle. The distinction features prominently in a trademark suit between Anheuser-Busch InBev and Constellation Brands pending in the Southern District of New York.

The suit, filed in February 2021 by Anheuser-Busch’s Grupo Modelo, the global owner of the Corona brand, against Constellation, which sells the Corona brand in the U.S. market under a 2013 license from Modelo, alleges Constellation has been selling “hard seltzer” products (bubbly water with alcohol and flavoring) not included in the license.

Both parties rely on the “plain language” of the license, but they disagree on what the plain language means.

The issue has come to a head in recent filings by Constellation, arguing in a motion to dismiss the complaint that the license contains a broad definition of “beer” that includes “sugar-based brewed beverages” including “hard seltzers.”  

In response, Modelo argued Constellation had never referred to its hard seltzer as a beer, and that “an average person asking for a beer would be perplexed (and likely disappointed) when a bartender serves a Corona Hard Seltzer.”

The dispute serves as another example of the importance of words in intellectual property litigation, and it has substantial consequences as Constellation seeks to expand its share of the growing hard seltzer market in the United States.

For more information, please contact Ben Dunlap at [email protected].