Copyright Protection for Fashion Designers Closer to Reality

The Senate Judiciary Committee has approved the Innovative Design Protection and Piracy Protection Act ("IDPPPA"), which (if passed by Congress and signed by President Obama) would expand Article 13 of the Copyright Act to include and protect "apparel" items such as clothing, luggage, handbags, wallets and eyeglass frames.  The IDPPA protects fashion designers from having their work stolen and reproduced.

Article 13 is somewhat of a hybrid of copyright and patent law, allowing a "designer" to secure copyright protection for "an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public."  At the present, Article 13 only applies to vessel hulls, but, if passed, will also protect apparel.  Copyright protection for apparel will last for 3 years, and infringers who produce apparel "substantially identical" to the protected originals will be subject to statutory damages.

The text of the proposed bill may be found here:  IDPPPA (pdf)

Whether the IDPPPA will go any further remains to be seen, Mitch McConnell and the Senate Republicans having vowed to block "any legislative item until the Senate has acted to fund the government and we have prevented the tax increase that is currently awaiting all American taxpayers."

South Park Sued for Copyright Infringement

A few weeks ago, South Park creators Trey Parker and Matt Stone escaped a possible lawsuit for lifting lines of the movie "Inception" in one of their South Park episodes. Parker and Stone apologized for using and making fun of lines they believed came directly from the movie's script, but, in fact, were from another online parody. Apology accepted, everyone's happy.

Now, Comedy Central, Viacom and South Park's producers are being sued by the producers of "What, What (In the Butt)", a copyrighted YouTube video that went viral in 2007.

The suit alleges that South Park's "nearly frame-by-frame recreation" of the "What What" video is blatant copyright infringement. Despite the fact that South Park's video may have used the words, music, and choreography of the original video, there are some pretty obvious, and important, differences as well.

Not only does South Park provide its own animation, characters and voices for its version, but the South Park video is interrupted by images of the other South Park characters watching and reacting to the video from their home computers. South Park did not use the original "What What" video, but created its own version and provided social commentary through its presentation of the video and preceding and succeeding South Park scenes.

See the South Park clip here: http://current.com/entertainment/comedy/92803346_south-park-sued-for-copying-youtube-video-what-what-in-the-butt-video.htm?xid=RSSfeed

And here's the original: http://www.youtube.com/watch?v=fbGkxcY7YFU

What do you think? Will South Park prevail on a parody/First Amendment defense? Or did South Park go too far by copying "What What" too literally?

Reflections from the NYC Marathon (or, "Why run, if Pharaoh's not chasing you?")

The New York City Marathon is truly a multicultural and awe-inspiring experience. From the multilingual banners at the pre-race expo to the spectators' signs along the course ("¡Si se puede!" and "Vive Le France" to name just two), it is clear that NY draws athletes and crowds from across the globe. Even at the Staten Island "villages" where runners gather for hours before lining up at the start, a 20 minute Port-O-Potty line is only long enough to hear two cycles of pre-recorded instructions in about a dozen languages. The energy, number of languages, and runners wearing hand-me-downs to keep warm in 30 degree weather and shed at the starting line, these villages seem like a cross between a refugee camp and Woodstock.

The race itself proves the point. I heard the crowds screaming for Italy, France, Mexico, Canada, Chile and Norway (not to mention the Ethiopian and Kenyan frontrunners). The signs and music displayed each neighborhood's style and culture, from the bagpipes of Bay Ridge, to Salsa in Sunset Park to rap and hip-hop in the Bronx and Harlem.

Miles 10-12: South Williamsburg is another story. The course brings the runners along Bedford Ave. through Hasidic Williamsburg - dozens of Hasids on each block, watching the race - and deafening silence. Hasidic men watched us out of the corners of their eyes, as if thinking, "Why run, if Pharaoh's not chasing you?" And the women and children stood nervously at the corners, contemplating the ideal time to dash in front of the runners to cross the street, seemingly annoyed that we would dare disrupt their routine, so soon after Shabbos.

The silence was broken by the hipsters of North Williamsburg and Greenpoint, who treated us to the music of the newest indy rock bands (whoever they are) that haven't sold-out yet.

Miles 15-18: First Ave came as advertised: the adrenaline-inducing crowds after the pace-killing Queensboro bridge (where, during this race, the world marathon record holder, Haile Gebrasalassie, QUIT the race and retired from running). First Avenue sported huge crowds and more countries represented than the United Nations. And I soon passed the most prominent runner of the race - the Chilean miner recently rescued from months underground.

I waved hi to some family and friends, and then got "in the zone" to power through the last 9 miles of the race.

Miles 18 to 22 were pretty much a blur, nothing to report. And I would love to forget Miles 22-24 - a increasingly steep incline up 5th Avenue to reach the final leg of the race in Central Park.

Suddenly...it was over. The last few turns through the park were the loudest, the most inspiring and most painful part of the race. And 365 yards (the 0.2 of the 26.2) has never felt so long. I would have actually preferred to run another mile, just to postpone the wave of pain which took over my legs as soon as I stopped running. But it was a good pain nevertheless - a pain that confirmed (in case there was any doubt) that I finished a marathon.

What's YOUR Religion?

On this eve of Yom Kippur, I began to think about whether running is a religion. No, seriously.

It all started when I thought about whether I was going to fast tomorrow. On one hand, even for secular Jews, Yom Kippur is the holiest day of the year, to be respected and observed. On the other hand, I am in the midst of training for the NYC Marathon coming up on November 7, and I should be concentrating on eating carbohydrates tomorrow, in preparation for my 18 mile long-run on Sunday.

But it doesn't stop there. Like various religions, which dictate what foods you can and can't eat, and when you can eat them, running is analogous. Jews can't eat pork or shellfish, Hindus can't eat beef, and runners should have a high carbohydrate, low fat diet. Runners should avoid simple sugars like white bread and candy, and focus on whole grains, brown rice and vegetables. Protein is also advised for a speedy recovery after a long run.

Judeo-Christian faiths believe that God created the world in six days, and on the seventh day God rested. Thus, Jews have designated Saturday as the holy day of rest, and Christians have Sunday. The remainder of the week is for work, or at least not for rest. So too, with running, our training schedule designates certain days for speedwork, tempo runs, easy runs and, yes, days of rest. Though God may not have created our training program, rest is an integral and necessary part.

To the chagrin of many runners, we must cut down on drinking alcohol when formally training for a long race. We follow this rule to ensure that we are able to train to 100% of our ability, without the negative effects of alcohol. We say "No" to our friends who go out for drinks on Friday nights, and instead run past the bustling nightlife to keep up with our training. Religions regulate alcohol heavily too - it is forbidden in Islam, as it is for the Mormons, and alcohol plays a very particular role for Jews and Christians' ceremonies.

Tomorrow is the Jewish day of atonement, and runners also have their sins to confess, although not in a booth - I admit that I missed my long run last weekend, and generally don't stretch enough after my runs.

Running also dictates the clothes we wear. In synagogue I wear a kippah, and I remove my shoes to enter a monastery. Some devout Islamic women wear burqas; and bishops, cardinals and monks wear robes. Some of these items are useful, and they all have meaning. On the run, we wear running shoes to protect our feet. We wear non-cotton clothing in order to wick moisture away from our bodies, which helps maintain our temperature in extreme weather. People may say the payes on Hasidic Jews look funny, but it serves an important purpose for them. For runners, in the winter, men and women both wear tights.

If religion has a goal - to understand creation, to reach heaven, or to be good to thy neighbor, then my Nirvana is crossing the finish line on November 7.

If running is a religion, I pray for an easy fast...run.

What's YOUR Religion?

(Oh, and runners don't have wars over the Faith - whether you can run 1 mile or 30, all are welcome).

ASMP Seminar: Copyright and the New Economy

Yesterday I attended a seminar put on by the American Society for Media Photographers called "Copyright and the New Economy." The afternoon panelists included, among others, Lawrence Lessig, Harvard Law School Professor and author of books such as Remix and The Future of Ideas, Chase Jarvis, the well-known commercial photographer, and David Carson, U.S. Copyright Office General Counsel. Below are some of my thoughts after the event.

What does copyright law mean today, in the 21st Century? Congress enacted the first Copyright Act in 1790, pursuant to Article I, Section 8, Clause 8 of the Constitution which permits Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Since 1790, and through several revisions and amendments, the Copyright Act has attempted to balance the interests of (i) artists; those who create art in order to make a living and (ii) the public's First Amendment right to freedom of expression. The grant of a copyright is, in and of itself, a small exception to the First Amendment, because (loosely) it permits the author of a work to exclude others from substantially similar expression.

Since the 1976 Copyright Act, the laws have been relatively stable. Even taking into account the copyright disputes which went to the Supreme Court and changed major components of copyright law (i.e. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994), [2 Live Crew's parody of Orbison's "Pretty Woman" did not constitute infringement because the work was sufficiently transformative to constitute a parody and fair use]), there was no threat to the fundamentals of copyright law that an artist and copyright holder attempted to enforce its copyright against an alleged infringer.

Just as the Campbell decision came down from the Court, the Internet Age began. As described by Mr. Lessig, the first iteration of the internet was "Read-Only." Some users would post content, and other users would read/download/purchase the content. The internet involved into "Web 2.0" with "Read-Write" abilities. Now users could upload content, and other users could edit, manipulate and change existing content.

Couple these changes in the internet with the fact that the general public could suddenly buy digital cameras and music editing equipment for relatively inexpensive prices, and the result is that ANYone can be an artist. ANYone can be a music editor or distributor. And now, with the recent developments in smart phones and social networking, much to the chagrin of many professional photographers, ANYONE can take a high resolution picture with their phone and immediately publish it to Facebook, Twitter, Flickr, or any other site, sync existing music to the image or video, and be the "author" of a new work.

Is the Copyright Act equipped for the 21st Century? How can professional photographers survive when the general public seems to be satisfied with (relatively) low-resolution, improvised pictures? Even websites like CNN.com encourage "iReporters" to upload their pictures from the site of a news event. Why hire a professional photographer when someone is always happy to snap a photo with their iPhone and send it royalty-free to the press?

What about YouTube users who "remix" their own video with existing copyrighted music? Or users who remix one artist's copyrighted movie with another artist's copyrighted music? Does the resulting work have the requisite "spark" of originality to be independently copyrightable, or withstand a copyright infringement lawsuit? Do two copywrongs equal a copyright?

The Copyright Act which was created (and extended) to protect Mickey Mouse cannot be the same Copyright Act that enforces artists rights at the same time as it comprehends and takes into account 21st Century user-generated-content technology. As Mr. Jarvis stated, at what cost do we enforce the existing Copyright Act? One one hand, artists who intend to make a living by creating art MUST be encouraged to create with an enforceable copyright to exclude others from using their works. On the other hand, the new technology is creating new artists that may never have had access in the past. Mr. Jarvis's 65 year old mother can finally take the pictures she always wanted because she has an iPhone, and children around the world can upload music and video remixes and send them to each other. We should be encouraging such creativity, not stifling it.

Nobody knows how, when or if these issues will be resolved. Obviously legislation takes years, and even when Congress enacts the Copyright Act of 20??, it will likely be obsolete as soon as the next iSomething is announced.

Admitted to SDNY and EDNY

On a personal and professional note, I would like to announce that I was admitted today to the United States District Courts of the Southern and Eastern Districts of New York. As a member of the Federal bar, I will be able to expand my practice areas, and more easily practice intellectual property law when such matters are litigated. I would like to thank Adam Nicolazzo for sponsoring me, and I am looking forward to my first appearance in Federal court.

SDNY Holds Gene Patents Invalid

On Monday, March 29, 2010, the U.S. District Court, Southern District of New York, held that patents on a set of human genes linked to breast cancer are invalid. Patents are meant for innovations, granting the inventor/creator the exclusive right to develop and produce the innovation. Exclusivity rewards the inventor, yet too much exclusivity stifles competition and advancement.

While no one is undermining the difficulty to identify and analyze genes, the ramifications of patenting such processes seem dangerous. First of all, genes should not be patentable subject matter, as they are not a new process or composition of matter. Genes already exist in all species, and are merely discoverable by the scientist. This is playfully analogous to Christopher Columbus (as the patent holder), claiming the New World in the name of Spain (a patent for exclusivity), when the land itself already existed and was inhabited by others (genes, waiting to be found). Discovering and analyzing genes, as with discovering America, is quite an accomplishment, but does it itself encourage invention/exploration and warrant exclusivity? Patents are not meant for discovering hard-to-find things, but for rewarding invention and creation - "to promote progress in science and the useful arts."

The Court also invalidated the method process of analyzing the genes, because the process failed the Bilski test requiring the process to be connected to a particular machine or device or that the process transform an article or piece of matter into something else. Bilski is currently before the Supreme Court, and its resolution will clear up some of these issues.

By invalidating the patents, the Court has encouraged competition and innovation, and many more research facilities will be able conduct similar genetic research, hopefully leading to advancements in breast cancer treatments, which treatments may in and of themselves be patentable.

NYC Half Marathon

Last Sunday, I ran the official NYC Half Marathon. It was already a great weekend - I went wine tasting with my fiancee on the North Fork of Long Island for my 30th birthday, and New York had its most perfect weather - sunny and in the 70s - since the fall.

My previous best half marathon time was 1:50:00, so my goal for NYC was simply to beat that time. And beat it I did... Official finish time: 1:47:55 - a pace of 8:15min/mile!

The course was a little more than a lap of Central Park, then through Times Square and down the West Side Highway. Having never run this particular race before, it was my first time running through the closed streets of Manhattan. The only disappointment was that the race began at an early 7:30am, and so there were very few people cheering us on. That being said - great experience. The clockwise loop around the park felt much better than counter-clockwise. The portion we overlapped was downhill, so we had a chance to increase our speed there.

Gatorade got me through the first half, and my trusty gu-roids got me through the last 5k. As gu-ross as that stuff is, it definitely works. Still sore, but looking forward to the next race. Anyone have suggestions on post-race soreness?

In the beginning...

While blogging is no longer a new activity, I am only beginning now, at the cusp of my 30th birthday. Even my 95-year-old grandma has already been blogging for years about sex, life and more (see: "What's Age Got to Do With It?" http://szussman.blogspot.com).

As an attorney practicing corporate law and commercial litigation, with a fascination with intellectual property, entertainment and art law, I will blog about developments in my professional life and my areas of expertise.

In addition, as I train for upcoming half-marathons, and soon begin training for the 2010 New York Marathon, I will share my stories of pounding the pavement, exploring new areas of Brooklyn, and terribly exciting details such as what flavor "Gu" got me through the weekly long run. Feel free to comment on your own experiences!

I hope you find my blog interesting, informative and you come back to read more!