She started going to the many studios and trying different classes through Yoga to the People. One class in particular sounded interesting. It was called “Traditional Hot Yoga” — a 90 minute class in a 105-degree-room. Turned out, the class was basically what she had done in Bikram studios.

Because as it actually turns out, the class is the same thing. And Bikram Choudhury (creator of Birkam yoga) is not happy about it. He’s suing the founder of Yoga to the People, a former Bikram student, for copyright infringement. Naturally, Choudhury was counter-sued. And the deadline for Choudhury’s response to the countersuit is this week.

It seems the estate’s hard-line stance was a result of wounds inflicted by the biographer Richard Ellmann’s publication of some “pornographic” letters Joyce wrote to his wife, Nora.  Thereafter, the estate’s parsimony largely prevented biographers and scholars from quoting the works in their publications, effectively chilling large tracts of the critical landscape (fair use is not explicitly recognized in the EU).  The estate also did its best to prevent public readings and performances of Joyce’s work in Europe, such as the staged events that have become customary every June 16, when fans gather around the world to celebrate “Bloomsday,” a commemoration of the novel Ulysses and its protagonist, Leopold Bloom.  This is perhaps an ironic stance from the estate of an author whose works relied on a robust public domain, borrowing as they did from so much popular music, literature, and journalism.

According to section 106(4) of the Copyright Act, copyright owners of musical works have the exclusive right to publicly perform their copyrighted works.  The Act’s definition of “perform” includes the playing of a musical work, “either directly or by means of any device or process.”   “Publicly” is defined as “[performing] . . . it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered,” or transmitting the performance to such a group.  When campaigns play songs over the speakers at a venue, they are clearly publicly performing the songs; as much as the campaigns try to create the feel of a party amongst close friends, it is really a gathering of big donors and campaign volunteers.  While most campaigns do not seek out a license to perform these songs directly from the artist who owns the copyright to the musical composition, they can usually avoid this by obtaining a license from a performance rights organization (PRO), such as ASCAP.  A license from an organization such as ASCAP allows the licensee to perform or play the songs of any of the organization’s members, which include nearly all songwriters.  Thus, once a songwriter joins ASCAP, he foregoes the right to protest a licensee’s performance of his songs, whether played on the radio or at a political event, in exchange for royalties.  A cease and desist letter from the songwriter to the campaign will have no impact, as the campaign is legally authorized to play the song under the ASCAP or other PRO license.

Many artists have found this problematic over the years.  In 2008, John Mellencamp, a strong Democratic supporter, learned that John McCain was using his songs “Our Country” and “Pink Houses” at his campaign rallies.  Rather than taking legal action, which would most likely have been futile, Mellencamp informally requested that McCain stop using his songs because they “have a very populist pro-labor message [and are] written by a guy who would find no argument if you characterized him as left of center.”  Clearly, the themes of his songs were contrary to McCain’s conservative message. 

McCain’s campaign acquiesced, but did so more for public relations purposes, and as an attempt not to alienate the campaign from Mellencamp’s large fan base.  McCain fared no better when he used ABBA’s “Take a Chance on Me,” as the Swedish pop group, according to McCain, apparently went “berserk” when they learned his campaign was using their song.  McCain’s campaign finally settled on Chuck Berry’s “Johnny B. Goode.”  Though Mr. Berry is a Democrat, he didn’t object to his song’s use by McCain.

Perhaps Congress could look into this matter to cure the headache that both campaigns and songwriters encounter.  After all, the venue where these political rallies are held may have PRO licenses, but in these national campaigns, the potential audience expands far beyond the crowd inside the venue because most cable news channels cover the speeches.  These songs become associated with the campaigns, and with a political message that may be contrary to the songwriter’s core beliefs.  This is usually not a concern that exists with most public performances, such as those on the radio, at a sporting event, or at a nightclub.  The songwriter should not have to forego joining a PRO, which can be highly lucrative and beneficial to his or her career, to legally prevent a campaign from using his song.  Maybe Congress can pass an exception for public performance licenses to political campaigns, and force the campaign to receive a license directly from the copyright owner, rather than the PRO.

Last Tuesday night, as the Iowa caucus results were being tabulated, I made myself some popcorn and hopped on the couch.  I wasn’t concerned as much about who won or lost, or which contender could put the most positive spin on the night’s results.  Instead, I sat through all of the drawn out speeches just to get to the climactic moment: which song had they chosen as their campaign’s theme?  Newt Gingrich opted for Survivor’s “Eye of the Tiger” at his concession speech, while Mitt Romney, the narrow victor, chose Kid Rock’s “Born Free.”  Fascinating choices – Gingrich apparently attempting to convey his feisty personality, Romney going with the always-popular freedom theme.  I thought to myself: here we go again!  Let’s just hope for the campaigns’ sakes that the artists aren’t “lefties.”

“In keeping with the situation”… what better time to recap the exhaustive year of developments in the IP world.  Two thousand eleven saw a great many changes.  The looming presidential election, bickering among political sides, and intense involvement from vocal lobby groups forced a surge of lawmaking; new technologies exploded onto the scene—and, of course, caused some fighting among industry powerhouses; people continued to struggle through the financial crisis, finding ways to muddle through using—or not using for Louboutin and YSL—trademark law.  This was a year of starters, of new beginnings, but also of significant losses.  Only time will tell the extent of the benefits or damage the 2011 changes will have.

Below are ten topics addressed by courts, legislators, and people generally in this eleventh year of the New Millennium that I found particularly interesting…

1. For the first time ever, Americans were encouraged to invent!  President Obama signed the American Invents Act into law on September 16, in the hopes of speeding up the patent process for entrepreneurs and small businesses.  The Act was generally met with praise by commentators, but concerns over confusion, mischief, and stymied institutional research hang overhead.

2. Two proposed anti-piracy acts—the Protect IP and Stop Online Piracy Acts—caused and continue to cause quite a stir as Congress debates the bills.  The Protect IP Act, which would effectively allow the government to halt financial transactions with rogue, infringing websites, elicited strong reactions from left-wing groups bent on protecting civil liberties.  SOPA, a related bill, would require Web hosting companies to police their sites for infringing content.  Not surprisingly, providers of hosting services strongly oppose the bill.  The Senate will vote on the bills on January 24, 2011, before which pirates and privacy hounds will surely continue to join forces to quash their passage.

3. Visions of Louboutins danced in counterfeiters’ heads as S.D.N.Y. Judge Victor Marrero refused to honor the Louboutin’s broad trademark in the color red.  Marrero stated, “[a]warding one participant in the designer shoe market a monopoly on the color red would impermissibly hinder competition among other participants” and compared Louboutin’s attempts to enjoin rival Ives Saint Lauren from utilizing the bright-colored soles to Picasso suing Monet for use of a particular shade of indigo.

4. Google was repeatedly reminded that “with great power comes great responsibility” in a string of various lawsuits filed against the search giant.  Judge Denny Chin set a trial date of July 2012 for the lengthy Google Books litigation.  Oracle sued Google over allegation of patent infringement of its Java and Android platforms.  PayPal filed suit against Google in May for stealing trade secrets.  Feeling left out, the FTC joined in by launching its “most comprehensive antitrust investigation” against the Internet kingpin.   Better luck next year Google.

5. The continued financial crisis motivated some to do-it-themselves.  For $275, individuals can successfully register their own trademarks with the USPTO.  Good news for small businesses in an economy where money is just about as tight as it can be, but not such good news for those trademark attorneys out there.  Never fear attorneys, you are still needed for the complicated stuff, because “not all registrations are created equal.”

6. Occupy Wall Street was big news in 2011.  In fact, organizers of the “movement,” as well as a number of other groups, including one Long Island couple, filed for a trademark of the slogan “Occupy Wall St.”  Because nothing says protest like a new t-shirt.

7. For websites like the Huffington Post, which essentially are online sources composed entirely of refurbished news, a flurry of concerns over the extent of fair use emerged in 2011.  How much copying is too much copying?  Isn’t it enough if you give credit where credit is due?  Does it matter how “hot” the news is?  Questions like these have yet to be answered by any legal authority—and possibly to the benefit of blog sites everywhere, (including this one)—but with the insurgence of more second-hand reporting and blog sites, coupled with the failing print news industry, the scope of fair use is likely to require a clear(er) definition in the near(est) future.

8.  2011 also had its share of losses, notably with the deaths of Steve Jobs and other technology innovators.  Local and national video stores dropped like flies upon the rapid emergence of “Internet subscription services for enjoying movies and TV shows,” like Netflix—which unfortunately has also taken a dive in recent months.  But luckily, the wheels of innovation have kept turning and spitting out new technologies everyday, like Apple’s improved face-recognition software.  Read about other top tech stories here.

9.  The end of an era approaches.  In 2011 the impending return of song rights to musicians made big news.  The 1970s amendments to the Copyright Act provided for termination rights, allowing artists to regain control of works after 35 years. Although this was a huge story in 2011, the amendments to the Copyright Act didn’t take effect until 1978 so they won’t actually affect anything until Jan. 1, 2013.  But it was still worth a mention on this list.  As the New York Times reported: “‘Everyone is adopting a wait-and-see posture. But that can only be maintained for so long, because the clock is ticking.’”

10. And finally, for you sports buffs out there, in case you have forgotten, lots of things happened before Joe Paterno was fired and the NBA started up again.  Out of fear that I will botch the terminology, check out this incredibly detailed recap of the year in sports here.

11. And finally, thanks to all for your contributions, suggestions, and readership over the past months.  We look forward to another fantastic year so keep checking in on the IPLJ in 2012.

We wish you and yours a very Happy New Year!

The bill known as the Equity for Visual Artists Act of 2011 would require auction houses that make over $25 million in annual sales to pay a 7% royalty on sales of artwork costing over $10,000. The royalty would be split between the copyright owner and a federal fund that would be established to help museums buy artwork from American artists.

This all sounds wonderful. Artists, who often make only a small profit on the original sale of their work, would now be able to realize the increased value of their work that only occurs long after the first sale has been made. The bill’s sponsors say this will put them on a level playing field with authors and musicians, who can potentially be paid continually as the popularity of their work grows. But will it?

This blogger suspects that a great portion of art sales occur as a form of investment, and if the artist gets a 7% cut of future profits, an investment in art suddenly seems less profitable. So the art collector may be more cautious about his purchases, buying only artwork that is sure to gain significantly in value. This hurts the lesser-known artists. Furthermore, the lesser-known artist is less likely to have work sold at Sotheby’s or Phillips de Pury, so he probably won’t ever see that 7% royalty, but he will see the drop in first sales. So the true beneficiaries of this law are those artists who already make enough money from their gallery sales. Maybe the fund to help museums purchase American art will make up for the lost sales, but there are other flaws. For example, this law does not apply to private dealers or online auctioneers.

An art object is not intellectual property, it is real property. Applying increased copyright protections to tangible objects seems a bit like a limit on alienability—which has always been strongly disfavored in this country. This could be quite a game-changer for the art world. As an opponent of increased intellectual property rights, this blogger (who happens to have a background in the visual arts prior to his legal education) is not enthused by the Equity for Visual Artists Act. I would be surprised to see this bill make it through Congress, and I don’t suspect that it would be beneficial for the art world. I could be wrong though—apparently a similar royalty system has been successful in Europe.

A week ago, Monday, the Supreme Court heard petitions for certiorari on two cases involving section 109(a) of the Copyright Act, which codifies the first sale doctrine.  The first sale doctrine provides a defense against a copyright infringement action for the the resale of a copyrighted good by a purchaser or transferee – meaning that the new owner of the good may resell or dispose of the item however he or she wishes without fearing being sued for infringement of the distribution right.

Both cases, Liu v. Pearson Education, Inc., and Kirtsaeng v. John Wiley & Sons, Inc., were decided on the appeals level in the Second Circuit in favor of the copyright holder.  The Second Circuit held in each that a purchaser or new owner of a copyrighted good may not use the first sale doctrine as a defense when the goods in question are manufactured abroad.  In December 2010, the Supreme Court, through an evenly-split decision, affirmed a similar holding by the Ninth Circuit in Costco Wholesale Corp. v. Omega SA.

Turns out it was shot in LA, and now some graffiti artists who did a mural with the words “I Love the Bronx,” which was actually done in the Bronx but was inserted in the background of the video, are looking to cash in on the hoopla. “TATS Cru,” the artists, said they had no idea their work was featured in the commercial until they started getting calls from friends. The artists are raising copyright issues because no one asked, or even told, them that their art would be used.