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is associate general
counsel for Chihuly
Studio and its affiliate,
where her work
focuses on contracts and intellectual
property licensing and protection. She
is a member of the WSBA Editorial
Advisory Committee. She can be
reached at email@example.com.
1 Williams v. Bridgeport Music, Inc., No.
LA CV13-06004 JAK (AGRx).
2See, e.g. www.youtube.com/watch?
v=ziz9HW2Zmm Y. Accessed Oct. 1, 2016.
3 The Australian court ordered the band to pay
the copyright owner 5% of their royalties earned
from 2002 onward. For another online comparison of the two songs, see www.bing.com/
F3BDC&FORM=VRDGAR. Accessed Oct.
4 The Tate Gallery defines “appropriation art”
as “the practice of artists using pre-existing objects or images in their art with little
transformation of the original.” www.tate.
5 Carihou v. Prince, 714 F.3d 694 (2nd Cir.
6 Id. at 707.
7 Lenz v. Universal Music Corp., 801 F.2d 1126,
1151 (9th Cir. (Cal.) 2015), opinion amended
and superseded on denial of reh’g, 815 F.3d
1145 (9th Cir. (Cal.) 2016), pet. cert. docketed Aug. 16, 2016.
8 Leval, Pierre, "Commentaries, Toward a Fair
Use Standard," Harv. L. Review, Vol. 103:1105,
1106 (1990). Available at www.law.berkeley.
edu/files/Leval_-_Fair_Use.pdf. Leval’s article is widely regarded as the impetus toward
a “transformative” fair use analysis by courts.
Leval, a judge on the Second Circuit Court of
Appeals, recently authored the opinion in
Authors Guild v. Google, 804 F.3d 202 (2nd Cir.
2015), cert. denied, 136 S.Ct. 1658 (April 18,
2016) wherein the court found that Google’s
books project that scanned copies and established a publicly available search function of
millions of library books, was transformative
9 Esworthy, Cynthia. “A Guide to the Visual
Rights Artists Rights Act.” Found at www.
10 See, e.g. Cheffens v. Stewart, No. 12-16913 (9th
Cir. June 8, 2016). Court found that the artists’
La Contessa art installation at Burning Man
was not a work of “visual art,” but “applied art”
and, therefore, not protected under VARA.
11 Chihuly is trademarked, raising the possibility of a trademark claim, too.
12 DMCA amended the U.S. Copyright Act and
was implemented to bring the U.S. in compliance with the directives of the 1996 World Intellectual Property Organization Treaty and
WITO Performances Phonograms Treaty.
13 Title II of DMCA, sometimes called the Online Copyright Infringements Limitation Liability Act (OCILLA) is codified at 17 U.S.C.
§§512(a) through (f).
14 The court noted that You Tube is a for-profit
company that generates revenues by selling
advertising. If users choose to become “
content partners” with You Tube, they share in a
portion of the advertising revenue generated. Lenz is not a content partner and no advertisements appear next to the video. Lenz,
815 F.2d at 1149.
15 512(f) states: "Any person who knowingly
materially misrepresents under this section —
( 1) that material or activity is infringing, or
( 2) that material or activity was removed
or disabled by mistake or misidentification,
shall be liable for any damages, including
costs and attorneys’ fees, incurred by the
alleged infringer, by any copyright owner
or copyright owner’s authorized licensee,
or by a service provider, who is injured by
such misrepresentation, as the result of the
service provider relying upon such misrep-
resentation in removing or disabling access
to the material or activity claimed to be in-
fringing, or in replacing the removed materi-
al or ceasing to disable access to it."
16 Lenz, 801 F.2d at 1149.
18 Id. at 1154.
19 Lenz v. Universal Music Corp, 815 F.3d 1126,
1135-1136 (9th Cir. (Cal.) Sept. 14, 2015) (
citations omitted), amended and superseded
on denial of reh’g, 815 F.3d 1145 (9th Cir.
(Cal.) Mar. 17, 2016), pet. cert. docketed Aug.
20 Steinhauer, Jillian. “Are Art Professionals
Afraid of Fair Use?” Hyperallergic, Feb. 3,
2014. Accessed Oct. 1, 2016.
21 Leval, supra, citing, inter alia, Harper & Row
v. Nation Enterprises, 471 U.S. 539 (1985).