Copyright infringement of college football helmet designs.

For almost 20 years, the University of Oregon's football team has been known for its unique uniform designs. Nike is the outfitter for Oregon, and Nike's founder, Phil Knight, is an Oregon alum. Knight's beneficence is the reason for the plethora of uniform designs, and he has also donated substantial sums of money to the school and football program.

To design the football helmets for Oregon and other college football teams, Nike uses a company named Hydro Graphics. Hydro Graphics uses water transfer printing to apply the designs to the football helmets. After creating the helmets, it is unclear whether Hydro Graphics retains ownership of the copyright, or assigns the copyright to Nike. In either case, the copyright covers the stylistic design of the helmets, not the functional part of the helmets themselves.

Hydro Graphics developed this series of winged-designs for Oregon, to represent the school's mascot, the Ducks. The Rice University Owls used a substantially similar or identical design on its football helmets for this year's Liberty Bowl. Rice's team outfitter is Adidas, not Nike. Hydro Graphics does not list Rice as one of its customers in its portfolio. So, the helmet designers or the copyright owners of the Oregon helmets (Hydro Graphics or Nike) appear not to be the same people who designed the Rice helmets.

Unless Rice's designer licensed the copyright from Hydro Graphics or Nike, or Hydro Graphics designed the helmet and did not place it on its portfolio, this is an actionable case of copyright infringement.

Previous posts on IP litigation and IP generally.

Here is a link to an index of some of my previous posts on intellectual property litigation. There should be more added to the list in 2014.

The ongoing debate over misuse of copyright.

A copyright owner has the exclusive right to reproduce, adapt, publish, perform and display his or her copyrighted work. You regularly can find people posting copyrighted content on the Internet. Sometimes, these people will say that their conduct is not copyright infringement, because they are not making money. That is not really true. Not making money from copyright infringement is a factor in determining whether fair use applies, but it is not dispositive.

If you reproduce, adapt, publish, perform or display a copyrighted work, and you do not meet one of the exceptions (like fair use), you are infringing another's copyright.

The more content that is fair use, the less speech is inhibited. The less content that is fair use, the more speech is inhibited. Larger companies tend to have greater power in getting content removed than smaller companies or individuals. This can lead to abuse, and there is an ongoing debate over copyright misuse inhibiting free speech.

The latest example is a copyright professor who used a copyrighted song during lecture for instruction, and the video of the lecture was posted on YouTube. The recording company of the song complained to YouTube, and YouTube removed the lecture. The professor's lecture is clearly fair use, because it was for nonprofit educational purposes, and would not have affected the market for sales of the song.

Copyright infringement when a mark is not being used "in commerce": The Baltimore Ravens example.

This is an interesting case involving an atypical application of copyright law. The plaintiff created a logo for the NFL's Baltimore Ravens shortly after the team announced its move from Cleveland in 1995. The plaintiff faxed his copy of the logo sketch to the team, and when the Ravens' logo was later released to the public, it was practically the same as the plaintiff's.

Normally, logo-copying is the province of a trademark infringement suit. However, the plaintiff here could only sue for copyright infringement, because his logo was not being used in commerce. If it had been used in commerce when the plaintiff faxed the logo to the team, he may have had a viable trademark infringement claim. Alternatively, if he had been a team official, he could have filed an intent-to-use trademark application when he created the logo, and an affidavit of use once it was being used in commerce.

Ad-skipping technology does not violate copyright law.

Just this week, the Ninth Circuit decided that "ad-skipping" technology allowing people to completely bypass commercials and advertisements does not violate copyright law. The ruling pertains to recent DVR technology that allows viewers to automatically bypass a commercial break without any human intervention (i.e., without having to press fast-forward on a remote control).

Basically, the rationale is that ad-skipping technology is a fair use, because it does not make any copies of a copyrighted work. Additionally, nothing forces viewers to pay attention to commercials anyway, and viewers have long had the ability to skip commercials manually, by fast-forwarding.

Eminem v. Facebook over copyright infringement.

Eminem's publisher is suing Facebook over its use of an Eminem song in an advertisement for Facebook Home. Remember, the elements of copyright infringement are (1) ownership of a valid copyright and (2) infringement without exception. Infringement is shown by proving a defendant had access to the copyrighted work, and the two works are substantially similar. More access means less substantial similarity is required. Less access means more substantial similarity is required.

Here, the article says the song is a slight variation of the Eminem song. This would mean that there is substantial similarity between the two works. The article also mentions there is an online trail proving that Facebook's founder was an Eminem fan. This would show access. Eminem's fame in general also goes to proving access. So, if Eminem can prove he has a valid copyright, he probably has a winning case.

Secondary liability for copyright infringement.

Direct copyright infringement, as discussed in previous posts, consists of a personal trespass to a copyright owner's statutorily-granted rights. In certain situations, one can be secondarily liable for contributory or vicarious copyright infringement. Neither is expressly permitted in the Copyright Act, but neither is prohibited.

To be liable for contributory infringement, the defendant must contribute or enable an infringement by intentionally inducing or enabling another to engage in direct infringement. This would be the proverbial devil on one's shoulder, encouraging that person to infringe someone's copyright.

To be liable for vicarious infringement, the defendant must profit from an infringement while declining to stop or limit it. Implicit in this is the ability to control the infringing activity.

The "fair use" exception to copyright infringement.

Yesterday, I wrote about copyright infringement as it relates to Usher's situation. For the unaware, Usher and Justin Bieber are being sued for copyright infringement. Unless the plaintiff's account of facts is inaccurate, Usher and Bieber are probably liable for infringement.

Even if a defendant violates a copyright owner's right to reproduce, distribute, perform, display or prepare derivative works of a copyrighted work, there are exceptions to liability. One of which is "fair use," which is the most common exception to liability for infringement.

A "fair use" occurs when a defendant uses a copyrighted work for criticism, comment, news reporting, teaching, scholarship or research. Contrary to popular opinion, it is not automatically a fair use if you do not make money off of it. Even if you use a work for one of the specific fair uses in this paragraph, courts still look at four factors in determining whether to apply the exception in an individual case:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. The nature of copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

So for instance, even if you use a work for scholarly purposes, it may not be a fair use if you affect the potential market for sales of the copyrighted work. Or if you use the work for criticism, it may not be a fair use if you use the entire work in your critique.

Usher and Justin Bieber sued for copyright infringement.

This case illustrates the elements of copyright infringement. Usher and Justin Bieber are being sued over a song they released in 2010. The plaintiff claims that he recorded the song and obtained a copyright registration on it in 2008, two years before Usher and Bieber recorded it.

The plaintiff also claims that he had discussions with Usher's mother in 2009 regarding re-recording the song and touring with Usher. On occasion, Usher's mom acted as his manager. She said Usher heard the song and liked it.

To establish copyright infringement, a plaintiff must show (1) ownership of a valid copyright, and (2) infringement of the owner's right to:

• reproduce the work,
• prepare derivative works,
• distribute the work,
• perform the work, or
• display the work.

If infringement is shown, a defendant can argue that he or she should not be held liable, because of fair use or another recognized exception. Establishing ownership of a valid copyright is usually not difficult. Here, the plaintiff claims that he obtained a copyright registration in 2008. Establishing infringement is more difficult, because direct evidence of copying is rarely available.

Without direct evidence of copying, infringement is established by comparing the degree of access a defendant had to the copyrighted work with the degree of similarity between the two works. The more access a defendant had to a work, the less similarity is needed for infringement. The less access a defendant had to a work, the more similarity is needed for infringement.

"Access" does not refer to the theoretical availability of the work to a defendant. For instance, you do not have access to every book in the world that has a copyright registration. You only have access to those books you have been exposed to, or those that are well-known.

If a defendant did not have much access to a work, he or she may have independently created it. If a work was independently created, there is no infringement. On the other hand, if a given work was widely disseminated and everyone knew about it, there is a high level of access and the chance of independent creation is very low.

Sometimes access can be proven, which appears to be the case here. Usher's mother said that Usher liked the song. If access is proven, the plaintiff would not need to show that the two songs are very similar. But it appears that the songs are very similar. (I have not listened to either song.)

Unless the plaintiff's account of events is incorrect, or if one of the exceptions apply that would negate improper appropriation, Usher and Bieber are probably liable for copyright infringement.