• Payment for use of protected barley seeds: when prospects for dodging payment recede …

    Case C‑242/14 Saatgut-Treuhandverwaltungs GmbH v Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel is a request for a preliminary ruling from the Court of Justice of the European Union (CJEU) made by the Landgericht Mannheim (Germany), on a Community plant variety matter. Credit must go to the CJEU for dealing with this reference so speedily. The request was only received at the CJEU on 19 May 2014 and we have a ruling within just 14 months — a sure sign that (i) the court is getting better at dealing with these references (which can provide a lengthy break in the national litigation that generates them) or that the questions, or (ii) the questions are getting easier.

    So what led to this reference in the first place? Saatgut-Treuhandverwaltungs (STV), an association of plant variety right holders, managed the rights of the holder of the Finita winter barley variety, which was protected under Regulation 2100/94 [on Community plant variety rights]. STV published an online list setting out all the protected plant varieties the rights to the administration of which it has been granted in the course of various marketing years, as well as the planting fees payable for those varieties. Each year STV would then ask farmers, without specifying a particular variety, to provide information on any planting of protected plant varieties for which they managed the rights, sending to them planting declaration forms for that purpose, together with a guide listing all the protected varieties for which they administered the rights in the relevant marketing year, together with the corresponding right holders and persons enjoying rights of exploitation.

    The Vogels, who had no contractual relations with STV, did not respond to those requests for information. However, in December 2011 STV became aware that in the marketing year 2010/11 the Vogels had arranged for 35 quintals of Finita seed to be processed. STV wrote to the Vogels, asking them to verify this information and to send it information concerning that planting by 20 June 2012 at the latest. Again, the Vogels did not reply. In July 2012 STV claimed payment from the Vogels of 262.50 euro, this being the full ‘C-Licence’ fee that would be due for licensed use of Finita seeds, as compensation for the damage suffered as a result of the undisclosed planting of that protected variety. No payment was forthcoming, so STV sued for it under Articles 94(1) and (2) of the Regulation.

    The worst bit about bringing in the barley was
    helping George find his lost contact lens …

    Said STV, the Vogels are obliged to pay to it reasonable compensation in an amount equivalent to the full C-Licence fee, under Article 94(1), because they carried out planting ‘without being entitled to do so’ within the meaning of that provision, and were not entitled to avail themselves of the derogation in Article 14(1) since they failed to comply with the requirement to pay equitable remuneration laid down in Article 14(3) . This obligation to pay is enforceable, STV added, whether a request for information is made by the holder of the protected plant variety or not, the farmer must make the payment before sowing and the protected seed and, in any event, by the end of the marketing year in which the protected seed is planted.  Finally, STV maintained, the information published on its website and the guide listing all the protected varieties which it managed, which was sent each year to farmers, would let the Vogels calculate for themselves and then pay the amount due for planting those varieties.

    The Vogels [who could have saved an awful lot of hassle and inconveniencing a good many IP bloggers and commentators, whether they were right or wrong, by just paying up 262.50 euro and getting on with their lives, says Merpel] denied liability to pay the full C-Licence fee and said they owed, at the most, a reduced fee, on the ground that the planting was ‘authorised’ within the meaning of Article 14(1). Nor were they required to reply to STV’s request for information, since that request did not relate to the current marketing year. In other words, there would have to be an infringement of the obligation to provide information in order for the conditions governing entitlement to compensation to be satisfied.

    The Landgericht Mannheim was unsure if STV was right that a farmer is required to pay, of his own initiative, the remuneration referred to in Article 14(3) of Regulation 2100/94 before sowing, in particular in the light of Article 6(1) of Regulation 1768/95 [implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation 2100/94]. Accordingly that court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

    ‘(1) Is a farmer who has planted propagating material obtained from a protected plant variety without having concluded a contract for so doing with the plant variety right holder required to pay reasonable compensation, as provided for in Article 94(1) of Regulation No 2100/94, and — if he has acted intentionally or negligently — to compensate the holder for any further damage resulting from the infringement of the plant variety right in accordance with Article 94(2) of that regulation, where he has not yet fulfilled his obligation under the fourth indent of Article 14(3) of that regulation, in conjunction with Articles 5 and 6 of Regulation 1768/95, to pay an equitable remuneration (planting fee) at the time when he actually made use of the product of the harvest for propagating purposes in the field?

    (2) If the first question is to be answered to the effect that the farmer can still fulfil his obligation to pay an equitable planting fee even after he has actually made use of the product of the harvest for propagating purposes in the field, are the aforementioned provisions to be interpreted as fixing a period within which a farmer who has planted propagating material obtained from a protected plant variety must fulfil his obligation to pay an equitable planting fee in order for the planting to be capable of being regarded as “authorised” for the purposes of Article 94(1) of Regulation 2100/94 in conjunction with Article 14 of that regulation?’

    On 5 March the Advocate General advised the CJEU to rule as follows:

    Articles 14 and 94 of Council Regulation … 2100/94 … in conjunction with Article 5 et seq. of Commission Regulation … 1768/95 … implementing rules on the agricultural exemption provided for in Article 14(3) … must be interpreted to the effect that a farmer is able to make use of the product of the harvest which he has obtained by planting, on his own holding, propagating material obtained from a protected variety without the authorisation of the right holder, provided he pays the holder an equitable remuneration in accordance with Article 14 within a period beginning on the date on which the farmer actually seeded the product of his harvest and expiring at the end of the marketing year in which that use took place.

    The CJEU accepted the position of the Advocate General and dismissed the arguments raised by the Vogels, who by this time had been supported by the Spanish government. Said the CJEU [at 28 to 31]:

    28 … to allow a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) to fulfil, without any time-limit, the obligation to pay equitable remuneration by way of derogation and, thereby, avail himself indefinitely of the derogation under Article 14 … would deprive the legal proceedings provided for in Article 94 of that regulation of any useful purpose. Moreover, since it provides that proceedings may be brought against any infringer who has failed to comply with that payment obligation, Article 94 … precludes such a person from being able to regularise his situation at any time, including after the holder of the plant variety right has discovered an undisclosed use of the protected plant variety. If follows that only by defining a payment period is it possible to ensure that such proceedings are effective.

    29 … the holders of plant variety rights alone are responsible for the control and supervision of the use of the protected varieties in the context of authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned [citing Case C-509/10 Geistbeck, noted by the IPKat here]. Accordingly, the absence of a precisely defined period within which farmers are required to comply with the obligation to pay equitable remuneration by way of derogation is liable to encourage farmers to defer that payment indefinitely, in the hope of avoiding payment altogether. To allow farmers to avoid complying with their own obligations towards holders in such a way would be at odds with the objective set out in Article 2 of Regulation No 1768/95 of maintaining a reasonable balance between the legitimate interests of the farmers and the holders concerned.

    30 … it is apparent from Article 7(2) of Regulation No 1768/95 that the marketing year during which payment of the remuneration is due starts on 1 July and ends on 30 June of the subsequent calendar year. Although that provision concerns the definition of areas dedicated to growing plant varieties by small farmers, it clearly shows that the marketing year during which propagating material obtained from a protected plant variety (farm-saved seed) was planted was regarded by the institution responsible for that regulation, when establishing the implementing rules for Article 14(3) …, as the relevant period in which the equitable remuneration by way of derogation is to be paid.

    31 Thus, if he has failed to pay the equitable remuneration by way of derogation within the period that expires at the end of the marketing year during which he planted propagating material obtained from a protected plant variety, without having concluded a contract for so doing with the plant right holder, a farmer must be regarded as having effected, without being entitled to do so, one of the acts set out in Article 13(2) of Regulation No 2100/94, which entitles the holder to bring the forms of action provided for in Article 94 of that regulation.

    Accordingly the CJEU answered the Landgericht Mannheim’s questions thus:

    In order to be able to benefit from the derogation provided for in Article 14 … from the obligation to obtain the authorisation of the holder of the plant variety right concerned, a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) without having concluded a contract for so doing with the holder is required to pay the equitable remuneration due under the fourth indent of Article 14(3) of that regulation within the period that expires at the end of the marketing year during which that planting took place, that is, no later than 30 June following the date of reseeding.

    This seems about right, thinks the IPKat, though the intention of the EU legislature could have been expressed a little more simply and clearly.

    The difference between winter barley and spring barley, here
    Barley wine here and here

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  • Don’t Feed The Patent Trolls – Daily Caller


    The National Law Review
    Don’t Feed The Patent Trolls
    Daily Caller
    It is looking increasingly likely that Congress will take action to deal with the threat of patent trolls sometime in the next month. Reliable sources indicate that sometime before Congress’ August recess, Virginia Republican Rep. Bob Goodlatte’s
    Patent Trolls Are Targeting the Energy IndustryThe National Law Review
    Update: Patent Trolls Are Targeting the Energy IndustryJD Supra (press release)

    all 3 news articles »

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  • Supreme Court refuses to hear Google’s appeal in Java patent case – CNET


    CNET
    Supreme Court refuses to hear Google’s appeal in Java patent case
    CNET
    The decision curtails Google’s efforts to avoid paying Oracle licensing fees for using Java code in the Android mobile operating system. by Lance Whitney · @lancewhit; June 29, 2015 9:12 AM PDT. facebook. twitter. linkedin. googleplus. email. comments.
    Supreme Court denies Google request in Java infringement caseInfoWorld
    Supreme Court Declines to Hear Oracle v. Google Case Over Java CopyrightsDisruptive Competition Project
    Google Loses to Oracle, But You Can Still Use APIsCMSWire

    all 176 news articles »

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  • Apple patent details AirDrop-like sharing for Apple Watch using handshake … – 9 to 5 Mac (blog)


    9 to 5 Mac (blog)
    Apple patent details AirDrop-like sharing for Apple Watch using handshake
    9 to 5 Mac (blog)
    In a new patent application, Apple details an idea it’s experimenting with that would have Apple Watch users shake hands to exchange data (via PatentlyApple). The idea is simple. The patent application imagines two Apple Watch wearers exchanging data, …
    Apple Watch patent lets you fist bump to share filesSlashGear
    Apple Wants to Create a Way To Share Files With High FivesGizmodo

    all 3 news articles »

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  • Federal Circuit Creates New (non-Alice) Hurdle for Software Patents

    By: Stuart P. Meyer In the wake of last year’s Supreme Court decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), dozens of courts have declared scores of patents to be invalid as not satisfying the requirements of §101 of the patent statute. The Federal Circuit recently issued a decision that provides the same result but does not rely on the Alice standard and may have a significant and lasting impact on patents for software-related inventions. Allvoice Devs. US, LLC v. Microsoft Corp., No. 2014-1258, 2015 U.S. App. LEXIS 8476 (Fed. Cir. May 22,…

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  • This new Apple Watch patent could upgrade your handshake – TechRadar


    9 to 5 Mac (blog)
    This new Apple Watch patent could upgrade your handshake
    TechRadar
    It may be easier to meet other Apple Watch owners in the future, whether you’re talking about the best smartwatch features or how you have no more money left due to the Apple Watch price. A new patent, filed by the Cupertino company, details a …
    Apple patent details AirDrop-like sharing for Apple Watch using handshake 9 to 5 Mac (blog)
    Apple Watch patent lets you fist bump to share filesSlashGear
    Apple Inc. Patents A File Sharing Method Through Apple Watch Using Bidness ETC
    Gizmodo -iClarified -TechnoBuffalo
    all 25 news articles »
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  • SRR experts recognized as world leading patent professionals – PR Newswire (press release)

    SRR experts recognized as world leading patent professionals
    PR Newswire (press release)
    Through an extensive research process conducted by a team of highly qualified, full-time analysts, the publication identifies the top patent practitioners, as well as leading patent law and attorney firms, in 41 of the world’s most important
    Choate, Hall & Stewart Named to IAM Patent 1000: The World’s Leading Patent Digital Journal

    all 6 news articles »

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  • Never too late: if you missed the IPKat last week …

    From the brilliant and fertile brain of our staunch supporter and comrade-at-arms Alberto Bellan comes this week’s harvest of last week’s Katposts, the 52nd in the series (yes, we’ve kept them going for an entire year!)  Alberto’s summary of the choicest posts from last week, which should help bring you up to speed if you missed anything, reads like this:

    Valentina provides a useful summary of the major innovations of the European Trade Mark Reform draft just issued by the EU Council [on which the IPKat recently reported here].

    * Hello goodbye: no estoppel as licensee gets the push

    Motivate Publishing FZ LLC and another v Hello Ltd [2015] EWHC 1554 (Ch) is a Chancery Division, England and Wales, ruling concerning termination, (non)-renewal, and estoppel within the context of an international publish licence agreement. 

    * Poll results: Inventor of the Year

    A few weeks ago, the IPKat asked whether the European Patent Office (EPO) ought to be organising and funding the European Inventor of the Year award. His concerns were twofold: the resources that are devoted to this event, and the fundamental question of whether the EPO ought to be seen to be ranking different inventions in terms of their merits. Also, the IPKat ran a sidebar poll to see how readers feel about this event. Here are the results, presented by David.

    * Are you a new IP lawyer in search of a network? Here’s something for you

    Are you a ‘new’ IP practitioner or academic — whether with a legal or non-legal background — looking for a network to join in order to share ideas and discuss topical issues facing this great area of the law? Then you may be interested in the recently created New IP Lawyers Network, which Eleonora presents in this post.

    * Delfi v Estonia: ISPs and the freedom to impart information

    Katfriend Christina Angelopoulos writes about Delfi v Estonia, a bizarre decision in which the European Court of Human Rights ruled on whether an online newspaper could be liable for the comments of its readers.

    * Consultation event on Court Fees for the Unified Patent Court – and news on timing of UK implementation

    Darren reports on the consultation event on the Court fees for the Unified Patents Court, a joint enterprise between the Intellectual Property Office, the IP Federation, and the Chartered Institute of Patent Attorneys.

    * Not so secret agent: when Bond isn’t 007 but 0.77

    In “The wounded patent survived, was only just infringed, but no injunction”here, Darren wrote about the decision of Birss J in Smith & Nephew Plc v ConvaTec Technologies Inc [2013] EWHC 3955 (Pat), a technically detailed case which amused Merpel, who commented that a case that started off being basically about chemistry ended up being basically about mathematics. The Court of Appeal (Lords Justices Kitchin, Briggs and Christopher Clarke), at [2015] EWCA Civ 607 , then allowed ConvaTec’s appeal and dismissed Smith & Nephew’s cross-appeal. Jeremy offers an introduction …

    * Round, round: how to round? How do we round?

    … and then Darren takes the floor for a more in-depth analysis.

    * Canary Wharf: great place name, not much hope for a trade mark …

    Jeremy writes upCanary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks [2015] EWHC 1588 (Ch), a Chancery Division, England and Wales, decision with a history, and a curious trade mark tale too.

    * A novel becomes a saga – Actavis v Lilly set to go on and on

    The IPKat blogged last year about the masterful and erudite judgment of Mr Justice Arnold in Actavis v Lilly (judgment on BAILII here), concerning pemetrexed. In the brand-new Court of Appeal decision just out - Actavis UK Ltd & Others v Eli Lilly & Company [2015] EWCA Civ 555 (25 June 2015), Lord Justice Floyd (Lords Justices Kitchin and Longmore concurring) disagreed with Arnold J on two main issues. The floor goes to Darren.

    * Council of Europe focuses on Eponia, and there’s more to come

    Pierre Yves le Borgn’ [the apostrophe is not a typo — it belongs to his name], a French Representative in the Parliamentary Assembly of the Council of Europe, has initiated a Declaration concerning recent developments in Eponia that has been signed by 82 MPs/senators, including four or the five main political group leaders. And who could tell this story better than our own lovely Merpel?

    * Freedom of panorama: what is going on at the EU level?

    A few days ago the Legal Committee of the European Parliament voted on an amended version of the draft Report prepared by MEP and Pirate Party member Julia Reda on the implementation of the InfoSoc DirectiveAmong the relevant amendments, there’s one concerning freedom of panorama. Do you know what that’s about? If not, Eleonora is here to give you the full scenario.

    * Will proof of a well-known mark ultimately be determined by a brain scan?

    A futuristic Neil imagines a time when consumers’ psychological/neurological associations could be measured (also) for the sake of assess a trade marks’ reputation

    * Case management decisions in the Lyrica case

    The ongoing case between Warner-Lambert (a subsidiary of Pfizer) and Actavis concerning pregabalin (sold by Pfizer under the trade mark Lyrica, and by Actavis under the trade mark Lecaent) seems set to be the case of the year, Darren says.  After one Court of Appeal decision (reported by IPKat here and here) and four first instance decisions (see here,herehere and here), the IPKat has learned that there was a flurry of case management motions resulting in a decision that is not available on BAILII, but that the same Darren comments in this post.
    ******************
    PREVIOUSLY, ON NEVER TOO LATE 

    Never too late 51 [week ending on Sunday 14 June] - GIs in France | IPBC Global 2015 | EPO recap | EPO and OAPI bff? | 3-D Lego trade mark | Garcia v Google | B+ subgroup | EU trade mark reform and counterfeits in transit | French v Battistelli | US v Canada over piracy | UK Supreme Court in Starbucks |  BASCA v The Secretary of State for Business | Patent litigation, music, politics | Product placement in Japan.

    Never too late 50 [week ending on Sunday 7 June] - Swiss claims | Italian-sounding trade marks for cosmetics | “IP litigation and Enforcement” event | Saving WiFi | Spy scandal at the EPO | Rihanna v DC Comics | KitKat trade mark | Taste trade marks in the Netherlands | Connectivity and human rights | Trade secrets, client confidentiality and privilege | 3-d printing and counterfeiting | Ericsson v Apple in the FRAND battlefield.
    Never too late 49 [week ending on Sunday 31 May] - Another copyright-exhaustion-and-software reference to the CJEU | ORO trade marks and GC | Patent Reform in EU | Copyright in the Bahamas | More and more references to the CJEU: communication to the public and linking | Trade secrets and the FoMo phenomenon | Independence of EPO’s BoA.
    Never too late 48 [week ending on Sunday 31 May] - The meaning of EPO appeal system | 3D Printing and the law | Epo and external investigation firms | Umbrella designs | US Supreme Court in Commil USA, LLC v Cisco Systems | European Inventor Award | FIFA and brand integrity | Warner-Lambert v Actavis |  Wine in Black GmbH v OHIM | IP and busking | Swiss-style claims.
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  • 特許庁、インド当局と協力強化 日系企業の出願増で – 日本経済新聞

    特許庁、インド当局と協力強化 日系企業の出願増で
    日本経済新聞
    特許庁はインドと知的財産分野で協力を深める。両国の審査官が実務研修で行き来する機会を増やすほか、日本の特許情報システムの一段の活用を促す。経済成長が続くインドと知財分野で協力を深め、同国に進出する日系企業の事業環境を整える。 29日に伊藤仁特許庁 …

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  • Jumpin’ through hoops? A copyright claim that never got off the ground

    Here’s a note from Katfriend and occasional contributor Kevin Winters, who takes a look at a recent US copyright dispute that has generated more columns in the popular press than it’s ever going to do in the legal literature. One might say that, despite its soaring subject-matter, this is one copyright claim that quite literally never got off the ground.  Writes Kevin:

    Did Nike Inc. infringe US copyright law by creating its iconic ‘”Jumpman” logo?  
    This question was recently answered by the District Court of Oregon in Jacobus Rentmeester v Nike Inc., (No.3 : 15-cv-00113-MO). In his decision, District Judge Mosman granted Nike Inc.’s motion to dismiss Rentmeester’s claims of (i) copyright infringement; (ii) vicarious copyright infringement; (iii) contributory copyright infringement; and (iv) a breach of the Digital Millennium Copyright Act (DMCA). 

    The background 

    Rentmeester, as part of a series of photographs for a 1984 issue of LIFE Magazine, organised a photoshoot with Michael Jordan.  The future basketball star was then just a student in North Carolina.  Rentmeester had planned to create a distinctive picture of Jordan outside the traditional gymnasium setting.  Accordingly he took a photograph of Jordan on a grassy hill with no apparent distractions other than a basketball hoop that he had installed purposely for the shoot, and the setting sun.  Jordan was instructed to jump straight up into the air and perform a grand jeté, a ballet leap, while holding a basketball. Rentmeester claimed that he was the first person to ever capture Jordan, or indeed any basketball player, in such a photograph 

    “with Mr Jordan extending his non-shooting left arm straight and forward, triumphantly holding a basketball (as the tip of a crown holds a jewel), and framing the shot with Mr Jordan appearing to glide away from the earth and toward a basketball hoop . . . would be powerful, compelling, and unique.”

    LIFE Magazine published this photograph in a special Olympic preview issue at around the same time that Nike was planning to launch its endorsement relationship with Jordan.  On the pictures’ publication, Nike contacted Rentmeester, requesting colour transparencies of the photograph.  Rentmeester agreed to lend Nike the transparencies in exchange for $150, with the following strict limitation: “for slide presentation only, no layout or any other duplication.” Within seven months of receiving Rentmeester’s colour transparencies, Nike created a similar photograph and displayed it on billboards and posters. 

    Upon learning of Nike’s activities, Rentmeester contacted Nike to discuss its copying of his photograph in breach of the terms of use in the 1984 Jordan Photo Invoice.  At this point the parties negotiated a limited and temporary use of the photo: Nike paid Rentmeester  $15,000 for a limited licence to use the Nike Photo for two years. After the licence expired, however, Nike continued to use the photograph on a wide variety of billboards, advertisements, and merchandise. Beginning in 1987, Nike began using the “Jumpman” Logo on all of its Jordan Brand merchandise. It was on this basis that Rentmeester claimed infringement of his copyright.  Nike Inc., filed a motion to dismiss Rentmeester’s claims on 16 March 2015.

    The decision 

    Judge Mosman agreed to grant the motion to dismiss the case.  In making his decision, his first step was to ascertain the appropriate legal standard to be met in claims for copyright infringement.  He acknowledged that, in order to state a claim for infringement, Rentmeester would have to allege (i) ownership of a valid copyright; and (ii) unauthorized copying of protected material.  Unauthorized copying could only be proven on evidence that Nike had access to Rentmeester’s work, and that the photograph in question was substantially similar to his.  Judge Mosman then pointed out that the most difficult part of the case was in determining how similar a photograph must be before it will be substantially similar.  He noted that based on the ruling of the Ninth Circuit in Mattel, Inc., v MGA Entertainment (No. 2:04-cv-09049-SGL-RNB), 
    Rentmeester’s claim for infringement depended on two things: 

    1.       Whether his photograph deserved ‘broad’ or ‘thin’ copyright protection 

    The court acknowledged that there were an “…infinite number of perspectives” from which the photograph of Mr Jordan could be taken, and that the same could be said of the lighting. However Judge Mosman noted that, in Mattel, the Ninth Circuit had given direction as to how much copyright protection should be enjoyed in a particular instance:
    “If there’s a wide range of expression(for example, there are gazillions of ways to make an aliens-attack movie), then copyright protection is “broad” and a work will infringe if it is “substantially similar” to the copyrighted work…If there’s only a narrow range of expression (for example, a red bouncy ball on blank canvas), then copyright protection is “thin” and a work must be “virtually identical” to infringe…”

    In respect of Rentmeester’s photograph of Jordan, Judge Mosman found that there were only a handful of possible perspectives from which the photograph could be taken – 10 to 15 – that could be from materially different perspectives.  Given this, and the criterion of ‘gazillion’ in Mattel, he found that the photograph only enjoyed ‘thin’ copyright protection. 

    2.       Whether the works in question were substantially similar 

    Before he attempted to answer this question, Judge Mosman filtered out the unprotected elements of the photograph.  Rentmeester conceded that the basketball hoop, the basketball, a man jumping, Jordan’s skin colour, and his clothing were all unprotected elements in his photograph.  

    Judge Mosman then identified a number of differences between Rentmeester’s and Nike’s photographs of Jordan: the Nike photograph featured the Chicago skyline with a red and purple sky, while Rentmeester’s photograph featured a blue sky, grassy hill and a setting sun.  He also pointed out a number of differences in Jordan’s pose in each photograph: the positioning Mr Jordan’s left arm is different in each photograph (backward versus fully extended); Jordan’s legs are different in each photograph (scissor split versus a straddle position).  Further, Judge Mosman found Jordan’s scale and placement to be different in both photographs (relatively small, left of frame and farther from the basket in one, and relatively large, centre of frame and closer to the basket in the other).  The treatment of the ground was also different: in Rentmeester’s photograph Jordan is seen to be jumping from a hill, while in Nike’s photograph it is not clear where he jumped from, and he appears to be flying over the Chicago skyline.  

    Based on these differences, Judge Mosman could not deem the pictures to be virtually identical.  As a result, Rentmeester’s claims were dismissed with prejudice.   

    The only similarity that Judge Mosman could find between Rentmeester’s photograph and Nike’s “Jumpman” logo was Jordan’s pose.  However, based on his analysis of the photographs, he found that the poses were not substantially similar and dismissed Rentmeester’s claims against the “Jumpman” logo with prejudice.    

    Kats leap too …

    Judge Mosman also found that Rentmeester could not rely on the DCMA.  The Act prohibits the provision of copyright management information that is false.  Given that the Nike’s photograph and “Jumpman” logo were deemed to be non-infringing works, Rentmeester’s claim was also dismissed with prejudice.  

    Takeaway message

    This case serves as a reminder that what will be deemed to be ‘substantially similar’ in cases concerning alleged copyright infringement will vary, depending on the facts of a dispute.  It also highlights the level of scrutiny that infringement claims will be subjected to, in determining whether the requisite level of similarity between two works is satisfied. Most importantly, it serves as a reminder that the use of an earlier idea is not, in and of itself, an infringement of copyright.

    How to pronounce Nike here, here and (on YouTube) here
    How to pronounce Rentmeester here

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