Can I Disinherit My Spouse?

Probably not. All states have laws in place to prevent people from intentionally disinheriting their spouse. This was the issue in Sullivan v. Burkin. [*1]

What happened in the Sullivan case?

Earnest Sullivan created a trust and transferred property into the trust.

The trust benefited him only and not his wife, Mary. Income from the trust went to him and he was able to take property from the trust as he pleased.

He also wrote a will. The will gave the trust, and all the property in the trust, to some other people - not his wife Mary! He even wrote in his will that he intended to leave his wife nothing.

What did Mary argue?

She said that the property should be taken out of the trust, and given to her as an heir.

What did the Court say?

The Court was torn. The problem was that the law at the time supported Earnest. What he did was not against the law. For this reason, Mary did not get the property

The Court was so appalled, however, that they changed the law. They said that, in the future, if you create a trust benefiting only yourself, when you die, the property will not stay in the trust, it will go the heirs.

What does this mean?

This shows that courts do not want to disinherit spouses. They see it as against public policy and will do what they can to allow spouses to inherit.

[*1] Sullivan v. Burkin, 460 N.E.2d 571 (1984)

Can I Leave Property To My Dog When I Die?

Yes, although you have to be careful on how you do it. This was the issue in Estate of Russell.[*1]

What happened in the Russell case?

Georgia Nan died leaving a will. Her will gave a $10 dollar piece of gold to her sister and the rest of the property equally to a man named Charles Quinn and someone by the name of Roxy Russell. Charles Quinn was a long time friend. Roxy Russel, however, was a DOG!

So the sister sues.

What did the sister argue?

The sister argued that the gift to the dog was void because dogs cannot receive gifts by will. She claimed that because the gift is void, it should go to the next closest relative. And who's the next closest relative - you guessed it, the sister!

Charles counter argued that Georgia Nan intended for him to receive all the property and money so that he can use it to take care of the dog (basically, a trust for the dog).

What did the Court say?

The sister wins. The Court says there is nothing in the will that suggests that the gift to the dog was actually for Charles to take care of the dog. It was very clearly for the dog directly.

Therefore, the gift to the dog is void and passes to the sister as the next closes relative.

What does this mean?

The laws of wills are complicated and different in every state. If you want to include a pet in your will so that the pet is taken care of when you die, make sure to talk to an attorney about writing it properly. It can be done, and in fact, has become common.

[*1] Estate of Russell, 444 P.2d 353 (1968)

Is A Price List Copyrightable?

Can a price list be protected by copyright?

They can be according to the Court in CDN Inc. v. Kapes. [*1]

What happened in CDN?

CDN published a weekly report that lists wholesale prices for collectible United States coins. This newsletter included prices for almost all collectible coins and was used extensively by coin dealers.

Kenneth Kape had a coin business and regularly received calls about the retail price of coins. Using CDN’s report on wholesale coin prices, he created a computer program that generated a list of retail coin prices. He published these retail prices on his website.

CDN sued.

What did CDN argue?

CDN argued that the wholesale coin prices in their weekly report are protected by copyright. They claimed that Kapes infringed on CDN’s copyrights because he used the CDN wholesale price to create his retail list.

What did the Court say?

The Court agreed. Copyright law requires the work to be original. “In order to warrant protection, compilation and other works must contain a minimal amount of originality or creativity.” The Court said that originality was apparent in how CDN created their pricing data.

CDN’s prices were original because they exercised judgment and creativity in determining what information matters to make their price lists. CDN looked at whether the coin was graded by a professional service and reviewed online bids. They looked at public auctions and private sales, and even effects on the economy and foreign policies.

CDN did not republish data from another source or use a set formula to generate the prices.

What does this mean?

This case shows that originality and judgment matter to earn a copyright in a compilation. If you use your judgment in putting together compilations, then it is more likely the compilation is protected by copyright. If your compilation is based on pure facts, then it is unlikely that it will be protected by copyright.

[*1] CDN Inc. v. Kapes, 197 F.3d 1256 (9^th Cir. 1999)

Are Video Games Protected By Copyright?

Are video games protected by copyright?

Yes. While this may seem obvious now, it was the subject of the 1982 case Williams Electronics v. Artic International [*1]

What happened in Williams Electronics v. Artic International?

Williams Electronics owned multiple copyrights for the videogame “Defender.” Artic made an identical copy of Defender and marketed the game under the title “Defense Command.” Williams Electronics sued for copyright infringement.

What was Artic’s argument?

Artic’s argument was very technical and very legal. They argued that a creative work must be "fixed" under Copyright law. Specifically, the Copyright Act requires that a work be “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than a transitory period.” [*2] Artic argued that since the video game image is constantly changing the image is not fixed, and therefore, not copyrightable.

What did the Court say?

Sorry, Artic. Images in video games are sufficiently fixed. While it is true the images in video games constantly change, the same images repeat over and over, and for this reason are sufficiently “fixed” for the purpose of copyright law. Video games are copyrightable.

What does this mean?

This case shows that the Courts are willing to take a liberal view on the term “fixed." This is important because it allows copyright law to protect newer technologies, such as video games.

[*1] Williams Electronics, In. v. Artic International, Inc. 685 F.2d 870 (3d Cir. 1982)

[*2] 17 U.S.C. Section 101

Independant Contractor or Employee?

I do consulting work without a contract - am I an independent contractor or employee?

It depends on a few things according to the Court in Aymes v. Bonelli. [*1]

What happened in the Aymes case?

Bonelli hired Aymes to create software for his swimming pool business. The program maintained records, inventory, sales figures, purchase orders, and price changes. There was no written agreement between Bonelli and Aymes.

Aymes did most of his work at Bonelli’s office, using Bonelli’s computers. He usually worked alone, and was given considerable autonomy and flexibility. He worked semi-regular hours. Sometimes he was paid by the hour, sometimes he was paid by the project with a bonus.

Aymes was not given health or other insurance benefits, nor were taxes withheld from his salary.

What did Aymes argue?

Aymes argued that because Bonelli did not provide benefits or pay social security taxes, he is an independent contractor.

What did the Court say?

The Court agreed. Five factors are relevant when determining if someone is an independent contractor:

1. The hiring party’s right to control the manner and means of creation
2. The skill required
3. Whether employee benefits are provided
4. The tax treatment of the hired party
5. Whether the hiring party has the right to assign additional projects to the hired party

The Court said that all 5 are relevant, but employee benefits and tax treatment are the most important.

Why is this distinction important?

It matters in determining who owns the work created. If you are hired by a company, and there is no contract, you probably own the work if you are an independent contractor. But, if you are considered an employee, then the company probably owns the work.

[*1] Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992)

Movie studio sues rental store over private rooms

Can a video store allow customers to rent private rooms to watch movies without permission?

No, not without permission from the copyright owner. This was the issue in Columbia Pictures v. Redd Horn [*1].

What happened in Columbia Pictures?

Redd Horne, a video rental store, allowed customers to rent a room to watch videotapes in small groups. Redd Horne did not get permission from the movie studios (who owned the copyrights to the movies).

What was Red Horne’s argument?

Red Horne argued that they bought the video tapes and can do with them what they want. [*2] According to Red Horne, after they buy the video tapes, the movie studios no longer have a say in how the video tapes are used.

What did the Court say?

Sorry, Red Horne. You are allowed to resell the video tapes but you are not allowed to show them in private rooms.

Renting private rooms to show movies is prohibited by copyright law. Copyright law prohibits unauthorized “public exhibition of motion pictures and other audio visual works.” [*3] This includes showing video tapes in private rooms. The display is “public” under the law because the video store is open to the public for anyone to rent a video (even though customers are viewing the videos privately in a rented room).

So what?

When you buy a video tape, you have the right to resell it. You do not have the right to show the copyrighted work “publically.” This case shows that the Court is willing to interpret the term “public” very broadly – so broadly that private showings in small groups available to the general public counts as “public” under the law.

[*1] Columbia Pictures Indus. V. Red Horne, Inc., 749 F.2d 154, 224 U.S.P.Q. 641 (3^rd. Cir. 1984)

[*2] First Sale Doctrine

[*3] 17 U.S.C. Section 106

Titanic documentary producer sues

Who is the author of a copyright in a movie shoot - the movie producer or the person actually holding the camera?

The producer, or more accurately, the person on the movie shoot that has a “high degree of control over the film operation.”

This was the issue in Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic. [*1]

What happened in the Lindsay case?

Lindsay was under contract with the British television company to film and direct the British documentary, “Explorers of the Titanic.” The documentary chronicled a salvage expedition to the Titanic.

Lindsay was at sea for a month filming the documentary. During this time and afterward, he thought of a new film project using high illumination lighting equipment.

As part of pre-production for this new project, Lindsay created storyboards detailing camera angles and shootings sequences. He put together a team to create huge underwater light towers to film the documentary. He also worked with the submarine crew every day to transport equipment and photographers to the underwater wreck site.

For the next 3-4 weeks, Lindsay directed, produced, and acted as cinematographer.

The defendants, R.M.S. Titanic, were the photographers that actually shot the footage underwater. They licensed the footage to the Discovery Channel without Lindsay’s permission. Lindsay sued.

What was R.M.S. Titanic’s argument?

They argued that Lindsay had no right to the footage because he did not dive to the ship and actually photograph the wreckage himself.

What did the Court say?

R.M.S. Titanic’s argument “does not hold water.” A creative work may be protected by copyright if they are “representative of original intellectual conceptions of the author.” [*2]

The project was Lindsay‘s vision and product of his planning. The storyboards and direction that he provided to the photographers suggest that the final film will be the result of Lindsay’s “original intellectual conceptions.”

What does this mean?

When a film maker shows that he “exercised such a high degree of control over a film operation - including the type and amount of lighting used, the specific camera angles to be employed, and other detail-intensive elements of a film - such that that the final product duplicates his conceptions and visions of what the film should look like,” the film maker is considered to be the “author” under copyright law.

[*1] Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic, 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999)

[*2] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)

Prince sues guitar maker

Is My Work Protected By Copyright if it is Based on Someone Else's Copyrighted Work?

No, not according the court in Picket v. Prince (the Prince case). [*1]

What happened in the Prince case?

In 1992, Prince, a popular musician, began referring to himself as an unpronounceable symbol, expressed verbally as the Artists Formerly Known as Prince. Prince trademarked that symbol and copyrighted it as a visual art.

In 1993, Picket made a guitar in the shape of that symbol and showed it to Prince. Soon after, Prince appeared in public playing a guitar similar to Pickett’s.

What did Picket argue?

Picket claimed the right to make a guitar based on Prince’s copyrighted symbol. His guitar has original elements, and at least those original aspects should be protected by copyright.

What did the Court say?

Sorry Picket. The owner of a copyright has the exclusive right to make creative works based on that copyright. [*2] It does not matter that Picket’s guitar has original elements. “Picket could not make a derivative work based on the prince symbol without Prince’s authorization even if Pickets’ guitar has a smidgen of originality.”

What does this mean?

When creating something based on a copyrighted work, you need the copyright owner’s permission. This is true even if your work has even a “smidgen of originality.”

DISCLAIMER: The information published is not legal advice. Do not rely on the information in this fan page. Consult a licensed attorney with any questions you have regarding your specific legal questions.

[*1] Pickett v. Prince 207 F.3d 402 (7^th Cir.2000)

[*2] A work that is based on an existing work is referred to as a “derivative work.”