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.

On copyright ownership.

If you create a work that you can otherwise copyright, you would not be able to copyright it if you assigned your rights in the work to someone else, created it for hire, or created it within the scope of your employment. Unless you are well-versed in copyright law, you may not know if you did this.

If you do not own the work, you can seek a license from the owner. If you own the work, you can license it to others.

What is a "fixed" work of authorship in copyright law?

To get copyright protection, you must have a fixed and original work of authorship. To be "fixed," a work must be perceptible for more than a short period of time. For instance, if you are talking with a friend, your statements are not fixed. But if you have the same conversation and record your statements, they are fixed because they are perceptible after the conversation ends, by listening to the recording.

Copyrights in one minute (podcast).

Here is the first in a series of one-minute podcasts on legal topics. This one is on copyrights.

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.

Ideas versus their expression in copyright law.

Copyright protects the expression of ideas, but not the ideas themselves. An idea is conceptual; a product of the mind. Expression is the tangible result of an idea. The same idea usually produces multiple different forms of expression.

There are relatively rare scenarios when expression is not copyrightable. This happens when there is only a limited number of ways to express an idea. In such cases it would be unfair to hold someone liable for copyright infringement when he or she had no choice but to infringe when expressing an idea. Generally, however, expression of ideas is copyrightable.

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.

The duration of copyright protection.

Original works of authorship are protected by current copyright law for the life of the author, plus 70 years. For joint works, it is 70 years after the death of the last surviving author. If the work is anonymous, it is protected for 95 years after the first publication, or 120 years after its creation, whichever occurs first.

This has not always been the case. The English Statute of Anne in 1710 protected works for 14 years if published before 1710 and 21 years if published after. If the author survived until the end of the term, it was extended for another 14 years. The Statute of Anne influenced the American Copyright Act of 1790, which protected works for 14 years, with the possibility of another 14 if the author was still alive.

Lobbying and longer life spans contributed to extensions in copyright duration. It is possible copyright duration will be extended again in the future. This article provides an interesting perspective on copyright duration. It argues that current law provides too much protection, and harms the public. The purpose of copyright grants is to promote progress, which does not occur if the law provides too much protection. Copyrights are not simply a reward to the author. They are granted to spur innovation insofar as they do not harm the public.

Principles regarding the fair use exception to copyright infringement.

Here is a good article on principles regarding the fair use exception to copyright infringement. It is directed to journalists, but the same principles generally apply to non-journalists. It is a lengthy article, but there is some good information in it.

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.

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.