978-1285428222 Chapter 9 Lecture Note Part 1

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CHAPTER 9

INTELLECTUAL PROPERTY

Property has traditionally focused on real property—physical things that can be seen and touched

—but increasingly intellectual property, which is often intangible, is the most important asset of

many firms and of most persons. In the information age, knowledge is often revealed in forms of

intellectual property. Intellectual or intangible property arises largely from mental activity. It is

protected by tort law (and by contract), some of which has been codified in legislation, except for

patents, which are purely statutory. Protection of intellectual property is expressly mentioned in

the Constitution. Actions for infringement are brought against those who wrongfully use others’

intellectual property

TRADEMARKS—Commercial symbols, logos or marks that are distinctive and nonfunctional

that are used to identify goods. A common law form of property recognized by Lanham Act,

which allows federal registration. Use may be perpetual so long as trademark is used, but the

focus is on real use in the market.

Add. Case: Central Manufacturing v. Brett (7th Cir., 2007)–The great baseball player George

Brett owned Brett Sports and began selling Tridiamond-made bats in 1999 under various names,

including a “Stealth” model. Central Mgfr. had used the Stealth mark since 1982 for boats,

motorcycles, bicycles, auto locks, comic books, lawn sprinklers, and other products. In 1984,

Central registered the mark for “sporting goods, specifically, tennis rackets, golf clubs, tennis

balls, basketballs, baseballs” and other products, but did not produce those products. In 2001 it

licensed the Stealth mark to Blackwrap to use on its baseball bats. In 2004 the Patent and

Trademark office registered the Stealth trademark to Central for baseball bats. About that time,

Central became aware that Brett used Stealth on baseball bats and sued for infringement. The

trial court held that Brett was the first to use Stealth on a baseball bat, in 1999, so that

precluded a claim of infringement since Central did not use the mark until later on baseball bats.

Central appealed.

Decision: Affirmed. Central failed to show that it actually used the Stealth mark in connection

with baseball bats before 1999. The Lanham Act protects marks when used in commerce; it does

Issue Spotter: Establishing Your Name

At least 60 million domain names have been registered, half with .com ending. Other endings,

such as .biz, are easier to obtain, but less desired. Cybersquatters have registered many names,

including most that new businesses may wish to have. Companies such as register.com provide

assistance in domain-name registration and advise getting a memorable, short name if possible,

and one easily spelled. People find it hard to follow bizarre spellings of names and will end up

on someone else’s site. Registration costs about $30 a year; up to 10 years’ registration can be

had at once. Accredited registrars can be found on the Internet Corporation for Assigned Names

and Numbers (icann.org) website. If a cybersquatter has the name you want, she will sell it and

will bargain on price, as you may be the only buyer. DomainCollection.com acts as a broker for

cybersquatter speculators. If you bid, do it through an anonymous email address so the seller

cannot figure out what business you represent. Most will come way down in price from the high

one they first offer to sell at. You could litigate, but that is expensive and time consuming. Many

other domain names had legitimate uses, but the person who registered the name no longer needs

it and may sell it cheap. Snapnames.com watches for domain names that are about to expire and

can help snag them.

Registration—Under the Lanham Act, trademarks are registered at Patent and Trademark

Office; a search is done to make sure no conflict exists. Common names and descriptive names

may not be trademarked. Federal registration is good for ten years, but can be renewed. It is a

good idea to put others on notice that a term is a trademark by using “TM” or “®,” but that is not

mandatory to have protection. The WTO helps enforce trademarks globally.

Add. Disc : Because so many commercial names are similar, gaining control of a trademark can

be very important. The general rule is first to use the mark in trade gains control; however, one

can file an intent-to-use application under the Trademark Act. The filing date may control later

in a dispute. The Trademark Dilution Act of 1996 essentially makes state registration of

trademarks irrelevant; this will make the law of trademarks more consistent nationally.

Classifications of Trademarks—1) Arbitrary and fanciful are most favored—made up and

distinctive—such as Exxon and Chicken of the Sea (tuna); 2) suggestive marks hint about the

product, such as Roach Motel; 3) descriptive are not favored and must be shown to have strong

public identification (secondary meaning) to be kept, such as Raisin Bran, All Bran, and

American Girl; and 4) generic marks are words that have become common but used to be

trademarks, such as Escalator and Aspirin. Most colleges have licensing agents to collect

royalties from the use of their trademarks, such as sports team name and mascot.

Add. Case: In re Reed Elsevier Properties (Fed. Cir. 2007)–Reed operated the website

www.lawyers.com. It first used the mark in 1998 and applied to register lawyers.com as a

service mark. The examining attorney at the Trademark Board refused to register the mark

because it is generic. Reed appealed and the Board affirmed, agreeing that it was generic. Reed

appealed that decision.

Decision: Affirmed. Under the Lanham Act, an appeals court may review a determination of

whether a mark is generic or not. The test for that is first, the genus of goods or services at issue

Add. Case: Peaches Entertainment v. Entertainment Repertoire Assoc. (5th Cir., 1995)–

Peaches Entertainment (PEC) began using the name Peaches on its record stores in 1975; at the

time of the case it had 21 stores in 6 states. It registered the TM Peaches in 1976. Entertainment

Repertoire (ERA) had one large store in New Orleans called Peaches that it opened in 1975.

PEC complained by letter to ERA about the name in 1975, but nothing more was done until suit

was filed against ERA in 1992 for trademark infringement. ERA defended that it had the right to

use the name in the New Orleans area because it was a “junior user” of the name prior to its

registration.

Decision: ERA had established its use of the name in the New Orleans area and may continue to

Add. Disc: Generic Marks: In 1938 the Supreme Court held that Nabisco could not stop other

cereal companies from using the name Shredded Wheat (Kellogg v. National Biscuit, 59 S.Ct.

109). The term was never registered as a TM. The public knew that Nabisco made Shredded

Wheat, but it was not the only company to do so. The term was generic and had been in use for

40 years, so anyone could use it. For a number of years Nabisco held patents on machines that

made the distinctive shape of Shredded Wheat cereal, but once those patents expired anyone

could make cereal shaped like little pillows and call it shredded wheat. The names Kellogg and

Nabisco must be the primary distinction between the products, as those are protected

trademarks.

International Perspective: Costs of Counterfeiting

The global market for counterfeit goods may be $500 billion per year, of which $200 billion is in

the U.S. The cost is lost revenue and jobs to the owners of the real marks, copyrights or patents.

In some cases the problem is more than revenue. Counterfeit, inferior quality parts have shown

up in aircraft. Bad baby formula presented health risks and fake drugs have ruined health.

Google and others are being forced to cooperate on Internet based trading of fakes.

Cyberlaw: Who Owns What Domain Name?

The company NSI was chosen by the Natl. Science Found. years ago to have control over the

issuing and controlling (and pricing) of domain names (that monopoly is apparently coming to an

end). NSI, now a part of VeriSign, set the rules and determined that first come-first serve was the

general rule with respect to genuine users. Other domains have been established that are not

under VeriSign control, such as .biz, but most have stuck with the original top level domain

names. Cybersquatters who claim names they expect to be valuable can have their claim

invalidated, but since the procedure takes time, many firms have simply paid the squatters to

give up the name.

Extent of Coverage— TMs cannot claim too much–coverage is limited to real use in practice.

Certain words are used as TMs on many different products made by different companies

(example of Shox). Extent of coverage depends on how well known a mark is and likelihood of

confusion.

Add. Case: Harley-Davidson v. Grottanelli (2nd Cir., 1999)–Harley warned motorcycle-repair

shop owner Grottanelli not to use the word Hog, which it had a trademark for, or to use the

Harley bar-and-shield logo, also a trademark. Grottanelli used his own version of the logo,

basically making fun of it. When ignored, Harely sued Grottanelli. The court ordered him to stop

using both trademarks; he appealed.

Decision: The trademark issued for “hog” is invalid and may not be enforced. Harley claimed

the word in the early 1980s and registered it in 1987. Grottanelli had used the word

commercially since 1969 and evidence is that the word was used to refer generally to large

Add. Case: Zazu Designs v. L’Oreal (7th Cir., 1992)–Zazu Hair Designs (ZHD), a hair salon in

Illinois, registered ZAZU in 1980 as a trade name. In 1986, L’Oreal wanted to use the name

ZAZU for a new line of hair cosmetics. It discovered the ZAZU registration in Illinois. L’Oreal

asked ZAZU asked if they were selling hair cosmetics, but was told that there were no ZAZU

products. Later, ZHD began to sell shampoo from its shop under the name ZAZU. ZHD sued

L’Oreal for trademark infringement. District court awarded ZHD $100,000 in lost profits, $1

million for corrective advertising to restore the ZAZU name and $1 million punitives. L’Oreal

appealed.

Decision: Reversed. ZHD had registered the name ZAZU with the state of Illinois, but had not

registered with the PTO. The Lanham Act allows only trademarks “used in commerce” to be

registered. If ZHD had registered with PTO it would have had a stronger case and L’Oreal

Add. Case: White v. Samsung (9th Cir., 1992)–Vanna White was hostess of “Wheel of

Fortune,” a game show. Samsung had a TV ad for its products supposedly in the year 2012, in

which a robot wearing a blond wig turned letters on a game show. The ad was a futuristic

version of “Wheel of Fortune.” White sued Samsung for unauthorized use of her likeness for

advertising without consent and for violation of the Lanham Act. The District Court granted

Samsung summary judgment.

Decision: Reversed. Her claim of Lanham Act violation must be heard. To prevail, she must

“show that in running the robot ad, Samsung . . . created a likelihood of confusion over whether

A dissenting judge would have rejected the claim. The majority opinion would mean that no

blond hostess could appear on a game show with a format similar to that of “Wheel of Fortune.”

“Under the majority’s view of the law, Gene Autry could have brought an action for damages

Add. Disc.: (1) Gatorade had a slogan, “Gatorade is thirst aid.” This was attacked by the

holder of the trademark “Thirst Aid,” which was used for a small line of soda fountain products.

This was held to potentially create reverse confusion under the Lanham Act, which is when an

advertisement takes advantage of an existing trademark, as in this case, which may cause

confusion about which product is related to which name. However, because Thirst-Aid is not well

known, it must show that there was in fact confusion that caused it to suffer injury. Further, the

use of thirst aid in the Gatorade slogan was descriptive of the qualities of the product, not

suggestive of the name, so it was not a direct infringement (978 F2d 947). (2) It was not a

violation of the Lanham Act for the trade dress “Tylenol PM” to be used, even though it was

similar to the trade dress “Excedrin PM.” The words Tylenol and Excedrin are trademarks, but

PM is not; it was trade dress first used by Excedrin, then by Tylenol. Since no confusion about

which product was which was likely to arise, no protection was available to Excedrin when tied

to PM (973 F2d 1033). (3) It was a violation of the L’eggs pantyhose trademark for another

company to put out pantyhose called Leg Looks when packaged similarly to the distinctive dome

shaped packaging created for Sheer Energy (L’eggs) pantyhose with a drawing of long legs on

the package (81 F3d 455). (4) Tommy Hilfiger was found in bad faith for having failed to do a

trademark search, as recommended by its attorney, before producing “Star Class” clothing,

which infringed on the trademark owned by the International Star Class Yacht Racing

Association. Hilfiger must account for profits earned and pay attorney fees (80 F3d 749). (5)

General Motors violated the trademark and publicity rights of Kareem Abdul-Jabbar by using

his former name, Lew Alcindor, without his permission in its advertising. A birth name is not

deemed abandoned such that others can use it for commercial purposes (75 F3d 1391). (6)

Neither “Warehouse Shoe” or “Shoe Warehouse” could claim trademark over “Warehouse”; it

is a generic term (75 F3d 1153).

Add. Case: Packard Press v. Hewlett-Packard (Fed. Cir., 2000)–Packard Press is a

commercial printer in New York. Expanding its services via the Internet, it selected the mark

“Packard Technologies” and applied to the PTO for the mark. Hewlett-Packard (H-P), holder of

many marks, filed an opposition on the grounds that it was confusingly similar to H-P’s existing

marks. The TM Board held there was a likelihood of confusion and denied the mark. Packard

Press appealed.

Decision: Reversed. A likelihood of confusion that would warrant denial of a trademark

registration application is based on many factors: 1) similarity or dissimilarity of marks in their

entireties as to appearance, sound, connotation and commercial impression; 2) similarity or

dissimilarity and nature of goods or services; 3) similarity or dissimilarity of established,

likely-to-continue trade channels, 4) conditions under which buyers make purchases-impulse

Note: A problem with trademark litigation is that it may require goods to be removed from the

market while litigation continues, which can destroy the market for the good. As a result, more

trademark disputes are settled by an alternative dispute resolution program run by the

International Trademark Association and the Center for Public Resources, a New York ADR

alliance.

Infringement, Dilution, and Cybersquatting—Infringement is when a seller causes confusions

about the origins of a product by improper TM use. It can come from either copying the actual

name on goods or using a name so similar as to cause confusion. Dilution generally applies to

famous marks which get special treatment under the Trademark Revision Dilution Act of 2006,

which bolsters Lanham Act protection. It allows attacks on any blurring of a famous name;

injunctions may be sought. Cyberquatting is when a TM is used improperly in a domain name;

one cannot capture a TM in a domain name. There are defenses of fair use, such as in

comparative ads, noncommercial use, such as parody or editorial, and news reporting and

educational use.

CASE: Audi AG v. D’Amato—D’Amato registered the domain name audisport.com. He sold

goods with Audi logos and TMs. He claimed to have permission from a salesman at an Audi

dealership (which is irrelevant since they have no rights to grant usage of Audi TMs). Audi sued

for infringement, dilution, and cyberquatting. District court granted permanent injunction.

D’Amato appealed.

Decision: Affirmed. Under both common law and Lanham Act, trademarks are protected. To

obtain equitable relief, Audi need only show likelihood of confusion. For statutory damages,

proof that buyers were actually confused would be needed, but that is not an issue here.

Likelihood of confusion is based on: strength of plaintiff’s mark, relatedness of the goods,

Questions: 1. The court affirmed that D’Amato engaged in infringement, dilution and

cybersquatting with respect to Audi’s marks. Since his website stated that he was not affiliated

with Audi, why did that not protect him? How could Audi be harmed?

It does not protect him because the law says so. The reason is that people are led to the site by

the use of the famous name—so D’Amato could end up getting business that Audi would have

2. Why does the law focus on marks that are distinctive and famous?

The newer statutes were passed due to strong lobbying by the owners of famous marks who want

strong legal protection for them. They got what they wanted as the statutes specify that

Counterfeiting—A multi-billion dollar problem for owners of trademarks; policed privately and

by government authorities. Now a major issue in international trade talks, especially with less

developed nations like China.

Private Enforcement—The Lanham Act allows parties to obtain search-and-seizure warrants to

grab counterfeit goods. Private investigators gather the evidence for a client, take the evidence to

a U.S. Attorney, who usually supports the issuance of a warrant. With an officer present, the

goods are seized and destroyed and may be used as evidence in civil litigation.

Add. Case: Hard Rock Cafe v. Concession Services (7th Cir., 1992)–Chicago Hard Rock Cafe

t-shirts, trademarked, earned over $1 million per year profit. Counterfeit shirts were sold at flea

markets run by Concession Services (CSI). Trial court issued injunction against further sales at

CSI flea markets. Hard Rock wanted CSI also held contributorily liable and vicariously liable

for financial losses Hard Rock suffered due to counterfeit sales.

Decision: 7th Circuit held CSI could be contributorily liable for trademark violations by the

booth operators at its flea markets if it had reason to know of the counterfeiting (which was

Add. Disc.: In Fonovisa v. Cherry Auction the 9th Circuit expanded on the Hard Rock case,

holding a flea market operator liable for contributory and vicarious trademark and copyright

infringement. The flea markets were well known to sell counterfeit music CDs; they had been

raided before and had been put on notice by the trademark and copyright holders, so their

liability was strong even though they were not the immediate sellers of the pirate CDs.

Add. Case: Levi Strauss v. Sunrise Intl. (11th Cir., 1995)–Levi’s accused Sunrise of

unauthorized production of “Levi’s 501” jeans in China for sale in Europe. Suing for TM

infringement, the court granted Levi’s request to inspect Sunrise’s business in Florida, where

documents and counterfeit jeans were seized. The court issued an injunction against any

transactions involving real or counterfeit Levi’s or representing that they were in any way

connected with Levi’s, and they froze its assets. Sunrise appealed, claiming that since the

counterfeit jeans were not produced or intended for sale in the U.S. that the court did not have

jurisdiction.

Decision: Affirmed. The Lanham Act applied to all commerce within the control of Congress.

When actions taken by U.S. residents may injure the trade reputation of a company at home and

Add. Disc.: Counterfeit goods are estimated to be a $200 billion enterprise worldwide. The most

commonly understood are of products such as Hard Rock t-shirts, Nike shoes, DVDs, and other

consumer products. But it shows up in less glamorous products. American car makers estimate

losses of $12 billion per year to sales of counterfeit auto parts. Perhaps half of all nuts, bolts,

and screws sold in the country—about $3 billion worth—have false trademarks or illegal quality

stamps. Since most people cannot tell a high quality bolt from a low quality nut, the deception is

hard to uncover, but effects are costly. Two-thirds of all nuclear power plants have been closed at

one time due to discovery of low-quality mis-branded bolts, etc.

Trade Dress— A commercial symbol also recognized by trademark law, concerns the look and

feel of products and product presentation, such as a distinctive decor for a chain of restaurants, as

in the 1992 S.Ct. case, Taco Cabana. This is a rapidly expanding area of law.

Add. Disc.: This case is consistent with a federal circuit holding that Owens-Corning could

claim the color pink for insulation as a trademark. What makes color or other trade dress

successful? A unique, non-functional color; use the color on the product and its packaging;

advertise the color; use slogans using the color (“Put Your House in the Pink” is used by

Owens-Corning); use the color in sales materials, promotions and give-aways; note on the

package that the color is a trademark. The trade dress exists when the look and feel is so

noteworthy, in its market, that is has meaning of its own (called secondary meaning) beyond the

immediate product or service.

Add. Case: TrafFix Devices v. Marketing Displays (S. Ct., 2001)–MD held a patent for a

“dual-spring design” that keeps outdoor signs upright during strong winds. After its patent

expired, a competitor, TrafFix, began selling signs with a similar dual-spring mechanism. MD

sued TrafFix for trade dress infringement. The district court held that there was no trade dress

protection for the design because it was a functional design that had lost its patent protection.

The appeals court reversed in favor of MD. TrafFix appealed.

Decision: Reversed. Because MD’s dual-spring design is a functional feature for which there is

no trade dress protection, MD’s claim is barred. Trade dress may not be claimed for functional

features; a patent is strong evidence that the features are functional. To overcome that

Issue Spotter: Knock Off the Knock-Offs?

If a company does not take steps to protect a trademark then eventually it loses its legal

protection and is generic. There must be evidence of intent to protect a mark from infringement

or at some point the mark is lost. So that is one reason to take steps against the knock-off makers

and sellers. Doing something effective is difficult. There are trade associations that hire firms to

go after illegal vendors–filing suit, going to the government with evidence of the illegal

activities, and such. For one firm to bear all the cost would be very difficult, so firms join

together through associations or specialty organizations to join in enforcement activities.

Stopping production in another country can be difficult–especially when production can be

moved quickly in case of enforcement. Producers and trade associations have put pressure on

other governments to take steps to enforce international trade agreements to protect intellectual

property.

Other Marks— Lanham recognizes service marks as well as TMs, but service marks apply only

to services such as advertising, hotels and associations. They are usually not as important as

trademarks. “Burger King” is a trademark; “Home of the Whopper” is a service mark

subordinate to Burger King. In practice, little distinction is made between service marks and

trademarks. A certification mark notes geographic origin (“Made in Texas”) or relationship to an

organization (“Union Made in the USA”). A collective mark is used in commerce by members of

a cooperative or some other association.

Trade Names— Protected by common law but not registered under Lanham. They are the names

of the business. Protection applies to the market area of the product or service; on cannot claim

national protection for a trade name that only has local meaning. When trade names are not

protected, such as elevator and zipper, the terms become generic and lose protection. The Coca

Cola Company and Rollerblade, Inc. fight very hard to keep their names proprietary.

Goodwill— A company’s name also generates an asset called goodwill. It is the trust of

customers an existing business has developed. It means that a business will sell for an extra price

because of a client base. It is often tied to trademark or trade name.

display, 4) perform, or 5) prepare derivative works. The rights are (by statute, since 1999) for the

life of the author, plus seventy years [and 95 years in the case of commercial works, such as a

movie produced at the Disney studios]. Since 1990, “moral rights” to works are also protected,

which limits the right of later owners to destroy or alter copyrighted works; this has generated

some litigation in cases involving artistic works later changed, such a the movement of a work of

art from its original location. Public facts cannot be protected, even if presented in a different

format, such as an alternative phone book listing of names and numbers.

Add. Case: Greenberg v. National Geographic Society (11th Cir., 2007)–Greenberg provided

photographs for articles that appeared in four issues of National Geographic. Past issues of the

magazine were digitized and sold on CD-ROM sets. Greenberg sued, contending republication of

his photographs in that format without his permission was infringement. The jury found willful

infringement and awarded the maximum damages allowed, $100,000 per incident, for $400,000

total damages. The magazine appealed.

Decision: Reversed. Electronic reproduction of the magazine was privileged revision of the

original works. Similarly, a computer program that allows a user to search the electronic

Add. Case: Williams v. Crichton (2nd Cir., 1996) Background: Williams wrote four copyrighted

works of fiction for children called Dinosaur World. In these 30 page books, young children get

lost in a dinosaur park and have various adventures. Williams sued Crichton, author of Jurrasic

Park; the book’s publisher; Steven Spielberg, producer of the movie; and the movie studio, for

Decision: Affirmed. To establish infringement there must be “copying of constituent elements of

the work that are original.” Copyrights do not protect ideas, they protect the expression of an

idea. Scenes and sequences of events in a setting cannot be copyrighted. The “common use of

Add. Case: Lotus v. Borland (1st Cir., 1995)–Lotus 1-2-3 is a spreadsheet program run by menu

commands, such as “Copy” and “Quit.” Over 450 commands are arranged into 50 menus and

submenus. Borland’s Quattro is a competitor introduced later that uses “a virtually identical

copy of the entire 1-2-3 menu tree.” The code was not copied, just the words and structure of the

menu commands. Lotus sued Borland for copyright infringement. District court held for Lotus.

Decision: Reversed. The menu command is not copyrightable. Copyright law states, “In no case

does copyright protection for an original work of authorship extend to any idea, procedure,

process, system, method of operation, concept, principle, or discovery, regardless of the form in

Registration—A simple form from the Copyright Office in D.C., plus $20 and two copies of the

work, is all that is necessary; it is simply registration in case evidence of when created in time is

Add. Case: Feist Publications v. Rural Telephone Service (S. Ct., 1991)–A phone company

brought a copyright infringement suit against the publisher of a phone directory that used its

listings from the phone company’s white pages in making a competitive phone directory.

Decision: The Supreme Court held that the names, towns, and telephone numbers of the

telephone company’s subscribers were non-copyrightable facts and that these bits of information

Add. Case: Superior Form v. Dan Chase Taxidermy (4th Cir., 1996)–Superior Form (SF)

“created and markets animal mannequins for mounting animal skins. Employing traditional

sculpturing techniques, [SF] creates the mannequins, using casts of actual animal carcasses as

models.” From the casts, plastic forms are made. Copyrighted mannequins are used by

taxidermists to put animal skins on for hunters. Chase, a large taxidermy supply company,

bought SF’s mannequins, copied them, and listed them for sale in their catalog, asserting they

were copyrighted by Chase. SF sued for infringement. The jury awarded SF $400,000; Chase

appealed.

Decision: Affirmed. “The Copyright Act provides copyright protection for ‘original works of

authorship fixed in any tangible medium of expression,’ including ‘sculptural works.’” An

Add. Disc.: What happens if a work was not copyrighted initially, but later the creators realize

they better get it copyrighted? The 1st circuit held in the Garnier case (36 F.3d 1214) that

copyrights can be “cured.” The attachment of notice of copyright is not required to gain

protection for creative works, although it is encouraged because proof is simplified. In any event,

the owner must make “reasonable efforts” to publish notice of the copyright that the world does

not know exists. Registration is a simple part of the process. Those who have copies of the work

should be notified of the copyright claim and potential violators put on notice. That is, there

must be an active campaign to notify all parties affected that a work in circulation is in fact

copyrighted.

Add. Info: International Copyright Protection: The Berne Convention and the Universal

others’ copyrights. The standards for copyright law tend to be quite similar in most countries.

The World Intellectual Property Org. works to further strengthen international protections,

including for digital on-line materials, which are specifically covered by the Digital Millennium

Infringement and Fair Use— Test of fair use of copyrighted materials: 1) purpose and character

of the copying (for profit?); 2) nature of the copyrighted work; 3) extent of copying; and 4) effect

of copying on the market for the work. Fair-use exemption allows one copy of many copyrighted

materials for personal use.

CASE: Latin American Music v. Media Power Group (1st Cir., 2013)—Media Power owns four

radio stations in Puerto Rico. It was sued by Latin American Music (LAMCO) for infringing on

copyrights by playing songs without a license. The jury found that plaintiffs did not show it

owned copyrights. Plaintiffs appealed.

Decision: Affirmed. For infringement, plaintiff must show ownership of valid copyright and that