Justia Communications Law Opinion Summaries

The Official Code of Georgia Annotated (OCGA) includes the text of every Georgia statute currently in force. Non-binding annotations appear beneath each statutory provision, typically including summaries of judicial opinions construing each provision, summaries of pertinent attorney general opinions, and a list of related law review articles and other reference materials. The OCGA is assembled by the Code Revision Commission, a state entity composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel. The current OCGA annotations were produced by a private publisher, pursuant to a work-for-hire agreement, which states that any copyright in the OCGA vests in the state, acting through the Commission. A nonprofit, dedicated to facilitating public access to government records and legal materials, posted the OCGA online and distributed copies. The Commission sued for infringement under the Copyright Act, 17 U.S.C. 102(a).The Eleventh Circuit and the Supreme Court held that OCGA annotations are ineligible for copyright protection. Under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties. The Court noted long-standing precedent that an official reporter cannot hold a copyright interest in opinions created by judges; no one can own the law. The doctrine applies to whatever work legislators perform in their capacity as legislators, including explanatory and procedural materials they create in the discharge of their legislative duties. The sole “author” of the annotations is the Commission, which functions as an arm of the Georgia Legislature and creates the annotations in the discharge of its legislative duties. The Court focused on authorship, stating that Georgia’s characterization of the OCGA annotations as non-binding and non-authoritative undersells the practical significance of the annotations to litigants and citizens. View "Georgia v. Public Resource.Org, Inc." on Justia Law

Myco believed its competitor, BlephEx, made false and misleading statements about Myco’s product and whether it infringed BlephEx’s patent, entitled “Method and Device for Treating an Ocular Disorder.” The district court preliminarily enjoined BlephEx from making allegations of patent infringement and from threatening litigation against Myco’s potential customers.The Federal Circuit reversed. Federal law requires a showing of bad faith before a patentee can be enjoined from communicating his patent rights. A showing of “bad faith” must be supported by a finding that the claims asserted were objectively baseless. There was no adequate basis to conclude that allegations of patent infringement would be false or misleading. Even if the injunction were narrowly tailored to allegations of infringement and threats of litigation against Myco’s potential customers, the “medical practitioner immunity” provision of 35 U.S.C. 287(c) does not blanketly preclude a patent owner from stating that a medical practitioner’s performance of a medical activity infringes a patent. Myco asked the court to assume, without any supporting evidence, that a doctor would have interpreted general statements as an accusation of patent infringement and a threat of litigation against the doctor herself. View "Myco Industries, Inc. v. Blephex, LLC" on Justia Law

Audrie, the Potts’ daughter, was sexually assaulted while unconscious from intoxication. Her assailants distributed intimate photographs of her. Audrie committed suicide. The Potts, as the registered successors-in-interest to “deceased personality” rights for Audrie under Civil Code 3344.1, authorized the use of Audrie’s name and likeness in a documentary. The Potts sued Lazarin under section 3344.1, claiming that Lazarin (who claims to be Audrie’s biological father) had used Audrie’s name and likeness "for the purpose of advertising services” without their consent. Lazarin admitted that he had displayed Audrie’s photograph “to change the law regarding parental rights” but argued that he had not acted to promote “goods or services.” The Potts submitted evidence that Lazarin solicited donations for a suicide prevention group, using Audrie’s name and photograph. Lazarin brought an unsuccessful special motion to strike the complaint under Code of Civil Procedure 425.16.The court of appeal reversed. Lazarin made a prima facie showing that the Potts’ suit was based on his “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” The Potts failed to establish that there was a “probability” that they would “prevail” on their Civil Code section 3344.1 suit; they did not show that Lazarin “misappropriate[ed] the economic value generated by [Audrie’s] fame through the merchandising” of her name or likeness. View "Pott v. Lazarin" on Justia Law

Customedia’s patents, which share a specification, disclose comprehensive data management and processing systems that comprise a remote AccountTransaction Server (ATS) and a local host Data Case Management System and Audio/Video Processor Recorderplayer (VPR/DMS), e.g., a cable set-top box. Broadcasters and other content providers transmit advertising data via the ATS to a local VPR/DMS. That data be selectively recorded in programmable storage sections in the VPR/DMS according to a user’s preferences. These storage sections may be “reserved, rented, leased or purchased from end user[s], content providers, broadcasters, cable/satellite distributor, or other data communications companies administering the data products and services.” On Dish Network’s petition for review, the Patent Trial and Appeal Board found various claims ineligible under 35 U.S.C. 101 and other claims unpatentable under 35 U.S.C. 102. The Federal Circuit affirmed the ineligibility finding, applying the Supreme Court’s “Alice” holding that “[l]aws of nature, natural phenomena, and abstract ideas are not patent-eligible.” The claimed invention is at most an improvement to the abstract concept of targeted advertising wherein computers are merely used as a tool; the invocation of already-available computers that are not themselves plausibly asserted to be an advance amounts to a recitation of what is well-understood, routine, and conventional. View "Customedia Technologies, LLC v. Dish Network Corp." on Justia Law

Brunetti sought federal registration of the trademark FUCT. The Patent and Trademark Office denied his application under a Lanham Act provision that prohibits registration of trademarks that consist of or comprise "immoral[ ] or scandalous matter,” 15 U.S.C. 1052(a).The Supreme Court affirmed the Federal Circuit in holding that the provision violates the First Amendment. The Court noted that it previously invalidated the Act’s ban on registering marks that “disparage” any “person[ ], living or dead.” The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious”; the Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. Material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation”; the Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. The statute, on its face, distinguishes between ideas aligned with conventional moral standards and those hostile to them.The Court rejected an argument that the statute is susceptible of a limiting construction. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off where the government urges would not interpret the statute Congress enacted, but fashion a new one. View "Iancu v. Brunetti" on Justia Law

Brunetti owns the clothing brand “fuct.” In 2011, individuals filed an intent-to-use application for the mark FUCT for items of apparel. The applicants assigned the application to Brunetti, who amended it to allege use of the mark. The examining attorney refused to register the mark under the Lanham Act, 15 U.S.C. 1052(a), finding it comprised immoral or scandalous matter because FUCT is the past tense of “fuck,” a vulgar word, and is therefore scandalous. The Trademark Trial and Appeal Board affirmed. The Federal Circuit reversed. While substantial evidence supports the Board’s findings and it did not err concluding the mark comprises immoral or scandalous matter, section 2(a)’s bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. The bar is a content-based restriction on speech; trademark registration is not a government subsidy program that could justify such a bar. Nor is trademark registration a “limited public forum,” in which the government can more freely restrict speech. The bar survives neither strict nor intermediate scrutiny. Even if the government had a substantial interest in protecting the public from scandalous or immoral marks, the regulation does not directly advance that interest because section 2(a) does not directly prevent applicants from using their marks. View "In re: Brunetti" on Justia Law

The rock group “The Slants,” chose that name to dilute the term’s denigrating force as a derogatory term for Asians. The Patent and Trademark Office (PTO) denied an application for registration of the name under 15 U.S.C. 1052(a), which prohibits the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The Supreme Court affirmed the Federal Circuit in finding the clause unconstitutional. The Court first rejected an argument that the clause applies only to natural or juristic persons. The Court then held that the clause is subject to the Free Speech Clause, which does not regulate government speech. Trademarks are private, not government speech. "If trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.” The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The disparagement clause cannot withstand even “relaxed” review. It does not serve a “substantial interest,” nor is it “narrowly drawn.” View "Matal v. Tam" on Justia Law

In 1969, the Flynt brothers opened “Hustler Club” nightclub, in Cincinnati. Larry later created the Hustler conglomerate, producing sexually explicit magazines. Jimmy opened his retail store, Hustler Cincinnati, in 2000, using the “HUSTLER” trademark (owned by Larry’s corporation) and began paying licensing in 2004. Jimmy and Larry had a falling out. Larry's Hustler fired Jimmy in 2009. Jimmy’s Hustler stopped paying fees, but continued to use the mark. Larry sued. The court enjoined Jimmy from “using in commerce any HUSTLER trademark” and “using any trademark or any variation thereof owned by” Larry or his corporations. Later, Larry complained that Jimmy had opened a new store in Florence, Kentucky, “FLYNT Sexy Gifts.” The court denied the contempt motion because the injunction did not directly prohibit Jimmy’s conduct. but modified the injunction, reasoning that Jimmy’s use of “FLYNT Sexy Gifts” was “likely to cause confusion with the LARRY FLYNT trademark.” The Sixth Circuit affirmed a modification that prohibits Jimmy from “[u]sing the name ‘Flynt’ in connection with the sale, promotion or advertising of adult entertainment products or services unless it is accompanied by the first name ‘Jimmy’ in the same font size, color, and style and on the same background color,” and required Jimmy, when using the name “Flynt” anywhere except on “store signage,” to incorporate “a conspicuous disclaimer stating that the goods or services are not ‘sponsored, endorsed by, or affiliated with Larry Flynt or Hustler, or any business enterprise owned or controlled by Larry Flynt.’” View "LFP IP, LLC v. Hustler Cincinnati, Inc." on Justia Law

Tam, the “front man” for Asian-American rock band, The Slants, sought to register the mark THE SLANTS and attached specimens featuring the name set against Asian motifs. The examining attorney found the mark disparaging to people of Asian descent (15 U.S.C. 1052(a)) and denied registration. The Trademark Trial and Appeal Board dismissed for failure to file a brief. Tam filed another application, seeking to register the mark THE SLANTS for identical services and claiming use of the mark since 2006. Attached specimens did not contain Asian motifs. The examining attorney again found the mark disparaging and declined to register it. The Board affirmed. On rehearing, en banc, the Federal Circuit vacated, finding Section 2(a) of the Lanham Act unconstitutional. The government may not penalize private speech merely because it disapproves of the message, even when the government’s message-discriminatory penalty is less than a prohibition. “Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word—can be powerful. With his band name, Tam conveys more about our society than many volumes of undisputedly protected speech.” The regulation at issue amounts to viewpoint discrimination; under strict scrutiny or intermediate scrutiny review, the disparagement proscription is unconstitutional, because the government has offered no legitimate interests to justify it. View "In Re:Tam" on Justia Law

“Musical work” and the owner’s exclusive right to perform the work in public are protected by 17 U.S.C. 106(4). Broadcast of a musical work is a performance and requires a license from the copyright owner. Copyright Act amendments afford the copyright owner of a sound recording “the narrow but exclusive right ‘to perform the copyrighted work publicly by means of a digital audio transmission.’” The law requires “certain digital music services . . . to pay recording companies and recording artists when they transmit[] sound recordings” and provides for appointment of three Copyright Royalty Judges. If sound recording copyrights owners are unable to negotiate a royalty with digital music services, the Judges may set reasonable rates and terms. The Judges set royalty rates and defined terms for statutorily defined satellite digital audio radio services (SDARS) and preexisting subscription services (PSS). SoundExchange, which collects and distributes royalties to copyright owners, argued that the Judges set rates too low and erred in defining “Gross Revenues” and eligible deductions for SDARS. A PSS that provides music-only television channels appealed, arguing that PSS rates were set too high. The D.C. Circuit affirmed, concluding that the Judges of the Board acted within their broad discretion and on a sufficient record. View "Music Choice v. Copyright Royalty Bd." on Justia Law