Bull Moose Strikes Back

Via Jules Crittenden, via Mark Steyn, via eCahce: Spitzer’s call girl is considering a copyright infringement suit against the AP for running her pictures from her MySpace page. As much as I’d love to see the AP eat it, I think she has three big problems to overcome:

1. The fair use issues that Crittenden discusses and what the AP uses as an excuse. It’s pretty straightforward news and comment situation, and covered by fair use. Though it will be funny the first time the AP has this one tossed back at them.
2. There is a question as to whether those photos are copyrightable. The Burrow-Giles case is the seminal case on whether a photograph can carry a copyright. A photograph is the result of a mechanical process, after all, and copyright is meant to protect expression of a human. If there is some aesthetic judgment or artistic arrangement that could satisfy the “modicum of creativity” standard required for copyright. The photo of “Kristen” on the boat might satisfy that standard, but the other ones appear to be snapshots which probably won’t meet the standard, especially since she didn’t know she’d be an important subject at the time of the photo.
3. The copyright would at least be co-owned with whoever took the photos. That’s her with the webcam, but the other photos had a photographer.

Even though I’d suppose they are legally in the right, if I were the AP I’d just settle this and throw her a few bills. If I were her I’d embrace this, milk it for all it’s worth, make people sick of you, and then disappear with my millions.

Next, we have Activision suing to invalidate a Gibson patent. While software and electrical engineering are not my field of expertise, the claims of the patent, especially the broader claims, seem to read on the Guitar Hero games pretty dead on. Activision knows this, that’s why they are trying to push the laches/collateral estoppel angle.

What’s interesting about this dispute is that Gibson licensed other aspects of its IP portfolio -guitar design - to Activision for the game and controller, so it’s not like they weren’t aware of the game. Was the IP mismanaged? Were Gibson’s in-house lawyers not aware of this patent? Or did they not think that Guitar Hero infringed the patent? I’m guessing it was some kind of laziness in the legal department. They probably hadn’t audited their IP in quite some time and didn’t know what they had. Then they came across this patent last year and thought they stumbled upon a goldmine. Or they thought the game would be a hit and they didn’t want to kill it before it got off the ground, so they let the goose get a little fat, and then moved in with the suit. We’ll see if collateral estoppel bites them in the ass.

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