This week, for some intellectual property fun, we're taking a look at a couple of ongoing high profile cases. In the limelight today are two transatlantic cases: the Viacom case against YouTube, and the Naked Cowboy's case against M&Ms.
Viacom and others have sued Google-owned YouTube for $1billion for alleged copyright infringement. Viacom, a company that owns Comedy Central, Dreamworks and Paramount Pictures, among others, filed the suit because it claims that YouTube allows content to be posted illegally onto its site and to be viewed billions of times for free.
What Viacom mean is that the content (works such as video, animation and music) is its property and that as owner of the copyright of the works, it has a right to prohibit them from being copied, broadcast, distributed or made available without its prior consent. What particularly irked Viacom was that yet unaired episodes of the Comedy Central series South Park were posted and viewed on YouTube for free, a clear threat to Viacom's projected revenues from the series.
Gone are the days when the transition from cinema to video to television, or from television series to video would take years. Today, content is pasted on the web and made available to the public immediately, at times even before official release dates. The studios are not happy and justifiably so. YouTube, on the other hand, is claiming protection under the American Digital Millennium Copyright Act, arguing that it is not liable because the copyrighted content was posted by its users and not by YouTube directly.
YouTube argues that it merely provides a platform allowing content to be uploaded, and that what is done by the users is not its responsibility. Indeed, American law stipulates that website owners escape liability so long as they comply with the conditions laid down in the law, such as removing unlawful content as soon as genuine take-down notices from the rightful owners are received.
In an interesting development, a couple of months ago, Viacom demanded in court that YouTube be ordered to hand over all details concerning Viacom-owned content on the site, including who posted the content, how many times it was viewed, and the private details of those who viewed the content on YouTube, a request that would have entailed YouTube handing over the IP addresses of viewers worldwide.
Initially, the court granted the request but as expected, this was met with great outrage from the public, especially in Europe where IP addresses are protected under privacy laws. Public pressure was felt in the US and a couple of weeks later an agreement was reached on this issue withdrawing the request to have YouTube disclose the identifying addresses of its users. YouTube, however, does have to give Viacom a list of all videos posted on its site which in any way contain Viacom content, and must provide information regarding the number of times the videos have been watched.
The outcome of the case is eagerly anticipated by both You Tube users and copyright lawyers worldwide.
The second case is an entertaining trade mark case brought by the notorious Naked Cowboy. The Naked Cowboy is a New York, Times Square attraction. He dresses up in y-front underwear, straps on a guitar, dons a pair of cowboy boots and a cowboy hat and he's all set. He has his own website, and has amassed quite a following. He is said to have achieved "New York symbol" status such as the Statue of Liberty and the Empire State Building. Tourists stand in line to have their photo taken with him. And he is reputably very resilient, appearing in costume all year round, come rain or shine for the past 10 years.
The fame of the cowboy, who's real name is Robert Burck, is such that he has registered his overall look or "get-up", as a trade mark in America and he uses this look for endorsing products and appearing in adverts and films.
Recently, the M&M producing company posted a digital billboard in Times Square showing a blue M&M dressed up in the same fashion as the Naked Cowboy. This advert, designed to attract customers to the M&Ms store in Times Square, portrays the M&M playing a guitar in Times Square.
Burck has sued Mars-owned M&Ms for a reported $6 million for trade mark infringement and false endorsement. Although at first dismissed as an over-ambitious suit, the cowboy seems to have a good chance of winning thanks to his registered trade mark and, of course, the fact that he exploits this image commercially. America is a place where the public is used to having celebrities endorse products and merchandising has become a common practice. If played right, this can swing in the naked cowboy's favour.
• Dr Rizzo is specialising in intellectual property law and art law with Fenech & Fenech Advocates.
Viacom and others have sued Google-owned YouTube for $1billion for alleged copyright infringement. Viacom, a company that owns Comedy Central, Dreamworks and Paramount Pictures, among others, filed the suit because it claims that YouTube allows content to be posted illegally onto its site and to be viewed billions of times for free.
What Viacom mean is that the content (works such as video, animation and music) is its property and that as owner of the copyright of the works, it has a right to prohibit them from being copied, broadcast, distributed or made available without its prior consent. What particularly irked Viacom was that yet unaired episodes of the Comedy Central series South Park were posted and viewed on YouTube for free, a clear threat to Viacom's projected revenues from the series.
Gone are the days when the transition from cinema to video to television, or from television series to video would take years. Today, content is pasted on the web and made available to the public immediately, at times even before official release dates. The studios are not happy and justifiably so. YouTube, on the other hand, is claiming protection under the American Digital Millennium Copyright Act, arguing that it is not liable because the copyrighted content was posted by its users and not by YouTube directly.
YouTube argues that it merely provides a platform allowing content to be uploaded, and that what is done by the users is not its responsibility. Indeed, American law stipulates that website owners escape liability so long as they comply with the conditions laid down in the law, such as removing unlawful content as soon as genuine take-down notices from the rightful owners are received.
In an interesting development, a couple of months ago, Viacom demanded in court that YouTube be ordered to hand over all details concerning Viacom-owned content on the site, including who posted the content, how many times it was viewed, and the private details of those who viewed the content on YouTube, a request that would have entailed YouTube handing over the IP addresses of viewers worldwide.
Initially, the court granted the request but as expected, this was met with great outrage from the public, especially in Europe where IP addresses are protected under privacy laws. Public pressure was felt in the US and a couple of weeks later an agreement was reached on this issue withdrawing the request to have YouTube disclose the identifying addresses of its users. YouTube, however, does have to give Viacom a list of all videos posted on its site which in any way contain Viacom content, and must provide information regarding the number of times the videos have been watched.
The outcome of the case is eagerly anticipated by both You Tube users and copyright lawyers worldwide.
The second case is an entertaining trade mark case brought by the notorious Naked Cowboy. The Naked Cowboy is a New York, Times Square attraction. He dresses up in y-front underwear, straps on a guitar, dons a pair of cowboy boots and a cowboy hat and he's all set. He has his own website, and has amassed quite a following. He is said to have achieved "New York symbol" status such as the Statue of Liberty and the Empire State Building. Tourists stand in line to have their photo taken with him. And he is reputably very resilient, appearing in costume all year round, come rain or shine for the past 10 years.
The fame of the cowboy, who's real name is Robert Burck, is such that he has registered his overall look or "get-up", as a trade mark in America and he uses this look for endorsing products and appearing in adverts and films.
Recently, the M&M producing company posted a digital billboard in Times Square showing a blue M&M dressed up in the same fashion as the Naked Cowboy. This advert, designed to attract customers to the M&Ms store in Times Square, portrays the M&M playing a guitar in Times Square.
Burck has sued Mars-owned M&Ms for a reported $6 million for trade mark infringement and false endorsement. Although at first dismissed as an over-ambitious suit, the cowboy seems to have a good chance of winning thanks to his registered trade mark and, of course, the fact that he exploits this image commercially. America is a place where the public is used to having celebrities endorse products and merchandising has become a common practice. If played right, this can swing in the naked cowboy's favour.
• Dr Rizzo is specialising in intellectual property law and art law with Fenech & Fenech Advocates.