◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for February, 2009
Copyrightability of characters in stories, movies, comic books and films?
All of us are familiar with Batman, Superman, Harry Potter, Stallone, the Terminator and a wide variety of similar characters from films, books, and movies; however, when is a character copyrightable? Unfortunately, the answer varies based upon the jurisdiction, the judge, and the medium in which the character is fixed.
Generally, visually depicted characters are granted copyright protection under the more lenient “specifically delineated or especially distinct” standard. Anderson v. Stallone. Often, this more lenient standard is justified, because the author is believed to have done more work and less imagination is required on the part of the reader. Id.
On the other hand, literary characters are often subject to the “story being told test” to acquire copyright protection. Anderson. This more stringent standard is often applied, because the author is perceived to have done less work and left more to the imagination of the reader. Id.
However, these generalities are only the starting point of the analysis. Often, traits or mannerisms of characters are also protected and literary characters are sometimes considered as a group to determine if together the meet the “story being told” test. The considerations often increase the likelihood of finding copyrightable subject matter. Moreover, visually depicted characters sometimes get a thin or limited copyright, which is limited, to the specific image created by the artist.
Essentially, the general principles sometimes lead to unexpected results in determining copyrightability. Thus, creating copyrightable characters requires a greater understanding of the story, contemplated or planned use, and identifying traits that clearly define the character. This understanding can be crucial to an author or artist’s ability to protect his or her work.
Our readers may be interested in reading the following cases:
Warner Bros v. Colombia (denying copyright protection under the story being told test); MGM v. American Handed Motor Co. (grating copyright protection under the specifically delineated or story being told test to the James Bond character); and Silberman v. CBS (denying copyright protection to the Amos and Andy character, because their traits were in the public domain).
New Amendments to the Family and Medical Leave Act
On January 16, 2009, the U.S. Department of Labor (DOL) adopted new regulations to implement the Family and Medical Leave Act (FMLA) that change the rights of employees and duties of employers. The new rules add a ”serious injury or illness of a covered service member” for whom the employee is eligible to provide care as a qualifying reason for leave.
“Military caregiver and qualifying exigency” were added as additional references for certifying leave. The DOL considered making changes, but made no actual changes to determining the number of employees for coverage under the FMLA.
Employees are eligible for leave, if their Employer has 50 employees at their worksite or within 75 miles of their worksite. Of course, Employees still have to be employed by the Employer for 12 months for at least 1250 hours for the 12 months preceding the leave.
However, a significant change was made to determine, if a Professional Employment Organization (PEO) would count as a joint employer for determining FMLA coverage. A PEO will be considered a joint employer, if the economic realities indicate that based upon all the facts and circumstances, the PEO is involved in the decisions to hire, fire, assign, direct and control the employees of its clients.
On the other hand, if it merely performs administrative functions such as payroll, then the PEO would not be considered a joint employer. Finally, the PEO’s client employer would not have the PEO’s office staff or the employees of other unrelated employers count towards coverage, unless they were economically dependent on the client employer.
These changes and others may have an impact on how you conduct business or how you can take leave under the FMLA. Additional changes can be found in the attached document, but if you have any specific concerns or questions, then please feel free to contact us.
Immigration status, Authorization to work status and Employment Discrimination Claims
The rights of immigrant workers, their authorization to work status and allowing employers to discover social security numbers, driver’s licenses, verifying identity, and arrest or criminal records is becoming more challenging. Courts are struggling with balancing the needs of discovery with the potential “chilling effect” of allowing employers to discover such information.
This is a hot topic, because immigrant workers are often scared and intimidated from pursuing their rights by the threat of deportation. However, unscrupulous immigrant workers, use multiple identities to commit identity fraud, hide previous employment, arrest and criminal records. There are legitimate policy concerns on both sides and determining what is the proper ruling is a struggle for our courts.
Currently, case law permits employers to ask for the authorization to work status, employment, arrest and work records, if back pay, wages or compensation is sought by the employee. However, if no back pay, wages or compensation is sought in the lawsuit, then employers are not allowed to ask for the authorization to work status. Often, courts will prevent employers from getting personal identifiers, social security and driver’s license numbers.
In some instances, courts will permit employers to obtain arrest and/or criminal records, but the law is in a state of flux. Consulting an employment law specialist can aid employees protect their rights and assist employers implement proper policies. In the event of a lawsuit, an employment law specialist can aid in navigating through the challenging discovery process.
If you would like more information about this post, then please feel free to contact our office.
The PRO-IP Act: What is it and what does it mean for US business?
The PRO-IP Act, is a bill President Bush signed into law in October of 2008. Its actual name is the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (the PRO-IP Act). The PRO-IP Act provides for increased enforcement of IP laws domestically and internationally.
The PRO-IP Act’s Trademark arm provides for increased statutory penalties ($1000 to $200,000) on both the importation and exportation of goods with counterfeit marks. It also increases the maximum penalty for willful infringement from $1,000,000 to $2,000,000. Finally, the trademark arm provides for treble damages where counterfeit marks are intentionally used or where goods or services are provided for the purpose of counterfeiting. The Court is granted discretion to waive the trebling of damages only upon proof of extenuating circumstances.
The Pro-IP Act’s Copyright arm provides for increased impoundment and seizure, including business records pursuant to an appropriate protective order. The Copyright arm further directs the Court to ignore registration inaccuracies, unless the inaccuracy was willful, or if the Copyright Office would have refused registration based on knowledge of the inaccuracy. Finally, the Copyright arm provides a tool for musical performers to register their works with the US Customs and Border Protection to receive notice of unauthorized copies entering the US.
In general, the PRO-IP Act also increases coordination and enforcement of IP laws domestically and internationally by creating a White House Liaison (IPEC), providing stiffer criminal penalties, and providing $25 million dollars in annual funding to help state and local law governments combat IP theft and infringement crimes.
It will be interesting to see how the PRO-IP Act impacts individuals, business owners, entrepreneurs, courts and IP practitioners. However, the PRO-IP Act provides significant tools for IP owners to protect and enforce their rights. Individuals and business owners with strong IP plans and strategies are well positioned to capitalize on the benefits that the PRO-IP Act provides.
