One district court in New York doesn’t think so, and, in light of a recent settlement agreement, the Second Circuit will not be afforded the opportunity to weigh in. In North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC, Case No. 13-cv-07153 (S.D.N.Y. Feb. 10, 2015), Judge Ramos declined to grant summary judgment in favor of defendants Judge Jeanine Pirro and Fox News Network, LLC on the plaintiff’s claim for copyright infringement. The Court found that, as a matter of law, fair use did not protect the defendants’ publication of an iconic 9/11 photograph on a Facebook page associated with the network’s program Justice with Judge Jeanine.
In Pirro, Fox News posted a photograph that juxtaposed a photograph of three firefighters raising an American flag at the ruins of the World Trade Center site on September 11, 2001, with another iconic photograph taken during World War II of four U.S. Marines raising the flag on Iwo Jima. The Court referred to the posting of the two photos side-by-side as the “Combined Image.” Interestingly, the defendants did not create the Combined Image; rather, a production assistant found the Combined Image on Google. The production assistant posted the Combined Image, unaltered, on a Facebook page that promotes the show Justice with Judge Jeanine, and added the phrase “#neverforget.”
A recent development in web applications has, seemingly, jarred open the lid to Pandora’s Box yet again: live video streaming from your trusty technology/partner at the end of your arm. The recent release of Meerkat (http://meerkatapp.co) and Periscope (www.periscope.tv) apps now afford anyone with a handheld device the ability to live stream video, in real-time, anytime, anywhere. With the streams linked to Twitter, Meerkat and Periscope users can broadcast live content of their choosing in real-time, and also retain those streams locally on their mobile phones. Viewers, in turn, also can re-stream in real-time to their respective followers.
Like so many other social media tools, these new apps are governed by simple (as in 6-8 bullet points) “rules” or “community guidelines” each accompanied by a relatively straightforward set of “terms or service.” While it is certainly likely that these rules, guidelines and terms of service will get the same glancing treatment by Meerkat and Periscope app users as users give to other social media tools (i.e., little to none), the nature and capacity of these live streaming apps is such that users should, indeed, spend the 5-10 minutes it would take to read and understand the rules, guidelines and terms of service.
On Monday, the Sixth Circuit hinted that the Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., No. 12-1184, 572 U.S. ___ (2014), which evaluated the Patent Act’s fee shifting provision, may apply to trademark cases brought under the Lanham Act. Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., et al., No. 14-3117 (6th Cir. Apr. 6, 2015).
In Octane Fitness, the Court found that “an ‘exceptional’ case [for purposes of shifting fees under the Patent Act] is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” The Court’s decision overturned a prior Federal Circuit decision (Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc.), which provided a much more rigid framework for assessing whether to shift fees under §285 of the Patent Act.
Next Page »