©-LAW

Last week, the Paris Court Appeal ruled ( decision No 152/2019 ) in favour of the estate of late French photographer  Jean-François Bauret  in proceedings brought against,  inter alia , US artist  Jeff Koons  (an artist who, as readers will know, has been sued a  few  times for copyright infringement: see, eg,  here ,  here , and  here ).  The action related to the unauthorized reproduction of a photograph (Bauret’s ‘Enfants’, shown below on the left hand side) in a sculpture (Koons's ‘Naked’, below on the right hand side).  'Enfants' (L) and 'Naked' (R) The defendants had advanced a number of arguments, including that:  ‘Enfants’ is not original;  even if it was, ‘Naked’, would not incorporate any original elements thereof;  even if  prima facie  infringement was established, freedom of the arts and parody would prevail over copyright. The court rejected them all. Let’s see what h...

Does EU copyright law allow the establishment of second-hand markets for subject matter (other than software) in digital format?  This is the question that the Court of Justice of the European Union (CJEU) substantially answered this morning when it handed down its much-awaited judgment  [not yet available on the Curia website]  in  Tom Kabinet , C-263/18 . The answer of the Court is that there  is NO  such thing as 'digital exhaustion' of the right of distribution under Article 4 of the  InfoSoc Directive . More specifically, the provision of ebooks falls within the scope of the right of communication to the public, in relation to which there is no possibility of exhaustion (see Article 3(3)). The decision  substantially follows t he  Opinion  that Advocate General (AG) Szpunar issued a little over 3 months ago  [Katpost  here ] . As explained in the  official press release : The Court found th...

Readers might remember that, a couple of years ago, this blog  reported  on a lawsuit filed in Italy by former Argentinean footballer  Diego Armando Maradona  against Italian fashion house  Dolce&Gabbana .  The reason?  The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009  [Maradona  played for Napoli  for a few years, and in that city he reached the peak of his career] . The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.  Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed the...

Amazon Logistics Last week, Advocate General (AG) Campos Sánchez-Bordona delivered an important   Opinion  in  Coty Germany v Amazon , C-567/18  [not yet available in English] .  He advised the Court of Justice of the European Union (CJEU) to rule that, for the sake of applying Articles 9(2)(b) and 9(3)(b)  EUTMR  (stocking of goods for the purpose of offering of putting them on the market): if a subject (a) has no awareness/knowledge of the infringing character of the goods which they stock  and  (b) does not intend to offer or put the goods on the market themselves, then there is no liability for the purpose of this provision. However, if a subject (eg, Amazon)  actively contributes to the distribution of said goods , eg through a programme like  Amazon Logistics  ( which allows the stocking of the goods sold by traders through Amazon and their subsequent delivery to purchasers) , then they are deemed to s...

The IPKat's favourite fictional character Last year, I was fortunate enough to be invited by  Associate Professor Yann Basire (Director-General of CEIPI)  to participate in a great (and cool!) conference he organized in Strasbourg on  Pop Culture and IP . The topic I was asked to discuss was trade mark protection of fictional characters, and the contribution will be published in 2020 as part of a collection edited by Yann and entitled  Propriété Intellectuelle et Pop Culture  (LexisNexis, coll. IRPI). But what about copyright protection of fictional characters: is it possible? how far could it go? Copyright protection is available to any work in a  Berne  and, now, EU sense. While no particular issues arise in relation to the literary, artistic or dramatic works that feature certain characters, in that they are regarded as ‘traditional’ copyright subject matter, whether copyright also vests in fictional characters as such has occ...