Superheroes and a Super Bowl hero are no strangers to media coverage. But over the past few weeks, The Walt Disney Company, producers of films including the Star Wars and Marvel franchises, and Tom Brady, five-time Super Bowl champion for the NFL’s New England Patriots, have each landed in the press over lawsuits involving copyright infringement.

The celebrity factor aside, there may not be much of an epic story to tell – yet – for either the Mouse or the GOAT, at least if we focus our attention strictly on questions of copyright.

Pull up a chair, and hold on while I make some popcorn.

Disney’s Distribution Battle with Redbox

In the Disney vs. Redbox case , on February 20th Judge Pregerson denied Disney’s request for a preliminary injunction which would have the effect of stopping Redbox from providing legally-obtained “codes” to consumers – these are certain 8-digit numbers, which are only usable once, that Disney has generated as a component part of DVD packages for their movies. The Judge labeled Disney’s request copyright misuse, and so – at this stage – his decision has the effect of allowing Redbox to continue. In effect, the Judge is implying that Disney’s effort to impede Redbox from doing what any purchaser of a copy of a work of intellectual property can do – such as resell that particular copy to someone else – is so far outside the bounds of an appropriate copyright infringement case, that it should not have been brought before him as one.

While the “wrongful distribution” alleged by Disney in the case may not, strictly speaking, be sufficient for this copyright claim, it does bring up some interesting questions. Specifically, if I, a copyright owner, put rules on the outside of the package of a copy of my work, saying (in effect) “Although you bought this box and its contents in a store, I only authorize you to open it on Tuesdays and only if your name is Tony Stark” – are you bound by that requirement? Why? At what point did you agree to my terms?

Related Reading: Copyright Law in 2017: 12 Big Court Cases to Know About

NFL Intellectual Property and the End of Embedding Tweets?

In the Tom Brady-related decision that came down in February, nine news organizations ran stories using an out-of-game image of Mr. Brady which had been taken in 2016 by a photographer named Justin Goldman. Goldman uploaded this image to Snapchat, which he had every right to do, as he had taken the picture of the celebrities in it while they were walking around a public place. Other people took this image and posted it to Twitter, where it “went viral.” At this point, the news organizations found the image a useful hook for a breaking story about some current events, and so they used it too. Judge Forrest found that this final step – the one taken by the news organizations – amounted to an infringement of the rights of the photographer/copyright owner. Flag on the play?

A number of copyright commentators have expressed their surprise at this result, which seems likely to be appealed.

[Bear in mind that federal court cases, including copyright cases such as this pair, begin at the district-court level. Decisions made at the district-court level do not carry precedential value outside their own districts; however, they are often appealed and these appeals sometimes result in a reversal of the original result. Appeals decisions have precedential value over much larger territories (the US is divided into only 12 courts of appeals; and they usually have persuasive value throughout the country.]


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Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as a research consultant. He previously held directorships in both public and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. He is the owner/operator of Pyegar Press, LLC.
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