September 2015

Unattributed Online Material Does Not Qualify as a “Learned Treatise” in Massachusetts

September 21, 2015

Lawyers can cross examine experts by questioning them with a “learned treatise” – what a non-lawyer might describe as an authoritative book or article written by an expert in the field. For example, if a doctor is testifying at trial in a medical malpractice case, her opinion on the proper standard of medical care can be challenged, on cross examination, by showing her a “learned treatise” that conflicts with her testimony. The jury hears the quote from the book, and can take it into consideration in evaluating the weight it may give to the expert’s testimony. This is what happened in Kace v. Liang, a wrongful death medical malpractice case. In this case the doctor-defendant was testifying.  He was shown pages from the web sites of Johns Hopkins University School of Medicine and Mayo Clinic that impeached his testimony, and at the request of the attorney questioning him, he read them to the jury. On appeal the defendant argued that the web pages did not satisfy the strict requirements associated with learned treatises under Massachusetts law, and the Massachusetts Supreme Judicial Court agreed, stating that The content of the web pages indicates that they are not medical ‘treatises’ of any sort intended to be read and used by physicians, but rather are directed at laypersons. . . . To establish the admissibility of the statements taken from the Johns Hopkins and Mayo Clinic Web sites,…

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Lets Go Crazy! The Dancing Baby, the DMCA and Copyright Fair Use

September 16, 2015

It’s not often that a case involving a 29 second video of toddlers cycling around on a kitchen floor goes to a federal court of appeals, much less results in an important,  precedent-setting copyright decision. But that is exactly what happened in Lenz v. Universal Music Corp. The cases arises from an issue inherent in the Digital Millennium Copyright Act. The DMCA allows copyright owners to request the “takedown” of a post that uses infringing content. But, what does the copyright owner have to do to determine, first, whether fair use applies? Does it need to do anything at all? This question has finally been decided by the Ninth Circuit in a much-anticipated decision issued on September 14, 2015. The case had inauspicious beginnings. In 2007 Stephanie Lenz posted to YouTube a 29 second video of her toddler son cycling around the kitchen, with Prince’s song “Let’s Go Crazy” playing in the background. Universal sent a DMCA takedown notice to YouTube, but Ms. Lenz contended her use of the song was fair use, and therefore was non-infringing. Eventually the dispute made its way to federal court in California, with Ms. Lenz asserting that her use of the song was protected by fair use, and that Universal had failed to take fair use into consideration before requesting takedown of her video. The issue before the court was whether, before sending a DMCA takedown…

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No, You May Not Copyright a Chicken Sandwich

September 1, 2015

One of the hoariest chestnuts of copyright law is that a recipe is not copyrightable. Seemingly unaware of this – or in outright defiance of the law – the plaintiffs in Lorenza v. South American Restaurants Corp. argued to the contrary.  Specifically, the plaintiffs claimed copyright in a “Pechu Sandwich” recipe consisting of”fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.” The complaint contained no allegation that the “recipe” for the sandwich was in a form of expression beyond that of a list of ingredients. The district court dismissed the copyright claim, and the First Circuit made short work of affirming: Contrary to [plaintiff’s] protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; . . .. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work. The only surprise in this decision is that the First Circuit did not award the defendants costs or attorney’s fees incurred in defending this appeal.

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