As a follow-up to our earlier post about Revoking an "Implied"
Software License, this interesting US case
(Davis v. Tampa Bay Arena Ltd.) deals with the use of
photographs on Facebook postings. A freelance photographer, Davis,
worked for the Tampa Bay Arena, taking photos for various events.
The photographer and arena had a verbal agreement since 1996, and
then a written agreement since 2000. The written agreement stated
that the arena had "rights to reproduce images for newsletter,
advertising, display prints, broadcast, and the [Forum] web
site." The agreement was also clear that Davis retained
copyright in the images.
That was the language dating from 2000. Fast forward 10 years,
and the arena started posting Davis's photos to its Facebook
page, something not contemplated in the scope of the original
agreement. However, for months Davis permitted the images to be
posted, and even set up a upload site to allow the arena's
marketing department to easily resize images for the Facebook page.
By this course of conduct and the email record, the court found
that Davis granted an implied nonexclusive license
to the arena to make use of the images in this way. Davis countered
by saying that if an implied license was granted, it was only
granted with certain strings attached - conditions regarding
additional payment that were never met. Because these conditions
were not met, the use of the photographs was unauthorized, giving
rise to a copyright infringement claim.
The court disagreed. On the copyright claim, the court decided
that "even assuming that Davis attached conditions to the
Forum's use of his images on Facebook, the record is clear that
these conditions were covenants, not condition
precedents to the granting of the implied license. Accordingly,
any breach on the Forum's part of these covenants provides
Davis with a breach of contract claim against the Forum, not a
copyright infringement claim." (Emphasis added.)
A chain of emails can easily establish a contract, such as the
implied copyright license in this case;
For any license - particularly copyright, media or trade-mark
licenses - check the original terms of the license. Social media
can cause problems when its use is unauthorized by the scope of the
original license, even though it seems like a natural extension of
what is authorized within the scope of the original license.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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