September 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.… Read the full article

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

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.… Read the full article

No, You May Not Copyright a Chicken Sandwich

by Lee Gesmer on 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.

Read the full article