July 2016

Melania Trump’s Speech – Plagiarism or Copyright Infringement?

July 25, 2016

The press calls Melania Trump’s use of Michelle Obama’s 2008 nomination speech “plagiarism,” but is it also copyright infringement?  Could the authors or assignees of Michelle’s speech sue Melania and others for copyright infringement? It’s hard to imagine this would ever happen for political and practical reasons (one of which I discuss below). But it’s interesting (fun?) to think about whether a copyright infringement suit against Melania would have legs. In that spirit, consider the following. Ownership. It’s likely that Michelle’s 2008 speech was written by several people, each of whom could be considered a co-author. The Forward reports that the speech was first written by Sarah Hurwitz, but it’s not clear if she was an independent contractor, an employee of the Obama campaign or working for someone else. This could raise ownership issues under the work-for-hire provision of the copyright statute. Setting aside work-for-hire, if several people participated in writing the speech (Hurwitz, Michelle, Barack?), assuming that each of these people meets the stringent requirements for co-authorship under U.S copyright law (independently copyrightable contribution and intent) and hasn’t assigned ownership to someone else, each co-author has independent standing to sue Melania for copyright infringement. It’s not inconceivable that Sarah Hurwitz (or her then-employer) is the sole owner of the copyright in Michelle’s 2008 speech, and Michelle, Barack and the Obama campaign would have no control over a copyright infringement suit. The bottom line is that…

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Kevin Kickstarter Visits His Attorney for an Update on the DMCA Following Capitol Records v. Vimeo

July 15, 2016

The fictional Kevin Kickstarter last met with his lawyer, Mr. Jaggers, in January 2014. Still pondering Mr. Jaggers advice (following the then-recent Second Circuit’s decision in Viacom v. Youtube), he recently heard of the Second Circuit’s new DMCA ruling in Capitol Records v. Vimeo, and he set up an appointment with Mr. Jaggers to get an update on the law. Before listening in on this fictional conversation, a brief recap: YouPostVid is a small “you post, we host” music video website. Kevin Kickstarter is its sole owner. YouPostVid is struggling to meet the confusing  requirements necessary to receive safe harbor protection for copyright infringement under the Digital Millennium Copyright Act (the DMCA).  (See the earlier transcript to be updated on how the DMCA can protect web hosts, aka “service providers”, from copyright liability for works uploaded by users). Two years ago Mr. Jaggers advised Kevin on how to stay on the safe side of the DMCA. But Kevin was frustrated by the confusing law, to the point where he even considered selling his business.  However, demonstrating true grit he has soldiered on and now, more than two years later, he’s back, ready to discuss the latest developments with his lawyer. We are privileged to listen in …. *      *      * Kevin Kickstarter: Wassup Mr. Jaggers? I almost didn’t want to see you today for fear of the latest. It has sure been…

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