Blawg Review #150 is up at Trust Matters by Charlie Green, co-author of The Trusted Advisor and creator of the Carnival of Trust, which I will be hosting on the first Monday of May. This week's review links to the Blog's follow-up post about whether photographs of copyrighted Thomas & Friends toy trains are derivative works -- click here for the post.
Schrock v. Learning Curve Int’l, Inc., No. 04 C 6927, __ F.Supp.2d __ (N.D. Ill. Jan. 29, 2008) (Shadur, J.).*
In February, I posted about Judge Shadur's opinion in this case holding that plaintiff's photographs of defendants' copyright Thomas & Friends toy trains were derivative works and, therefore, could not be registered with the Copyright Office without defendants' express permission -- click here for the post. Professor Rebecca Tushnet of my alma mater, the Georgetown University Law Center, at the 43(B)log has posted about the case also. Tushnet questions why the creator of an authorized derivative work should be prevented from registering that work:
What I don’t understand is why authority to register ought to matter. The derivative works – accepting for the moment that this is what they were – were made with the permission of the copyright owner in the original works. That is all that ought to be required. Of course there is a potential problem of blocking copyrights – but other cases have avoided this by finding no derivative work at all where a translation from two dimensions to three, or three to two, has taken place.
It does seem reasonable that the authorized creator of a derivative work should have the right to register the copyright, leaving any rights held by the underlying copyright owner to be controlled by contract. Of course, requiring that the right to register be expressly granted also leaves the rights to the contract between the parties, just with a different default.
I am sad to report that Mark Banner of Banner & Witcoff passed away over the weekend. Mark was an important member of Chicago's IP bar and an active participant in educating numerous lawyers as an adjunct professor at both John Marshall in Chicago and my alma mater the Georgetown University Law Center. My condolences go out to Mark's family and the Banner & Witcoff firm.
Here is some more information on Mark's legacy from Banner & Witcoff:
Mark was the lead trial counsel in many successful intellectual property trials from both the plaintiff's and the defendant's perspectives. He had a particular passion for jury trials of patent cases and computer-related technologies. Despite battling cancer for the last five years, Mark continued his involvement in litigation and counseling work. “Mark made significant contributions to the field of intellectual property law. He was an extremely gifted attorney, a loyal partner, and a devoted friend. Mark was an integral part of the firm and will be greatly missed,” said Thomas K. Pratt, President of Banner & Witcoff.
Mark was a Past-Chair of the American Bar Association (ABA) Section of Intellectual Property Law. He served as a member of the 16-lawyer Council of the ABA Section of Intellectual Property Law for many years. He was the past Editor of the ABA Section of Patent, Trademark and Copyright Law, and a past Contributing Editor of the Quarterly Journal of the American Intellectual Property Law Association. He was a past chairman of the Illinois State Bar Association Section of Intellectual Property Law. He was named one of the top 10 lawyers in the state of Illinois as chosen through a peer balloting process involving 47,000 Illinois lawyers and through a research and review panel
organized by Law & Politics magazine.
Mark frequently lectured on patent law, patent trials, trade secrets, and other intellectual property matters. He served as a faculty member of the first National Institute of Trial Advocacy program specially designed to develop patent litigation trial skills. He was also an adjunct professor at the John Marshall Law School and the Georgetown Law Center, teaching courses on patent trial advocacy and enhanced use of technology in the trial of complex cases. He was also a bar course administrator for the Master Class on Appellate Advocacy, taught by the Hon. Paul R. Michel, Chief Judge, United States Court of Appeals for the Federal Circuit, at the Center for Intellectual Property Law at the John Marshall Law School.
A graduate of Purdue University, West Lafayette, Indiana, and the John Marshall Law School in Chicago, Illinois, Mark was a member of the Law Review and graduated with high honors. Mark was born in Pontiac, Michigan, January 21, 1950.
He was preceded in death by his mother, Ruth, who died in 1985 and his father, Donald W. Banner, who died in 2006. He is survived by his wife Kathie German. He is also survived by his sisters Peggy (Mrs. James) Dau of Bartlesville, OK, and Pamela (Mrs. Robert) Banner Krupka of Los Angeles, CA, and brothers Donald J. (Helen) of Pueblo, CO, and Brian E. (Cathleen) of Washington, DC. Mark is also survived by his stepmother Jean Banner of Tucson, Arizona and his step sisters Nancy (Mrs. Robert) Phipps of Nashville, TN, Helen (Mrs. George) Smith of Atlanta, GA and Louise (Mrs. Robert) Whitaker of Franklin, TN.
The family is planning a memorial service for Mark in January 2008 in Chicago, Illinois.
The family requests that memorials be made to the Donald W. Banner and Mark T. Banner Scholarship Fund at the John Marshall Law School (315 South Plymouth Court, Chicago IL 60604).
Thanks to Dennis Crouch at Patently-O for bringing this sad news to my attention.
Father Robert Drinan, S.J. died on Sunday. Father Drinan was a founder of modern (post-Watergate) legal ethics and a colorful, important character in American political history, having been a member of the House Judiciary Committee during the Nixon impeachment proceedings and an outspoken critic of American activities in Vietnam and Cambodia while he was in Congress. Father Drinan was also a professor at Boston College (actually the Dean) and then at Georgetown. While getting my JD at Georgetown, I was blessed to spend a considerable amount of time with Fr. Drinan as an Editor on the Georgetown Journal of Legal Ethics, created by Fr. Drinan and still the only ethics journal in the country, and when I took several of his classes, including his Advanced Legal Ethics Seminar. Fr. Drinan loved teaching and he had an endless supply of experience from which to teach.
Despite my obvious love and respect for Fr. Drinan, I was not going to post about his passing on the Blog because I could not see how he had much to do with intellectual property law or Chicago (he was a Boston man who loved the BC sports teams, it really hurt him when he lost our friendly wager over the 98 Wolverines-BC Eagles NCAA Hockey National Championship). But it turns out I was wrong, Fr. Drinan also played an important role in shaping IP as a member of the House IP subcommittee, according to Bill Patry. Father Drinan will be missed. He was a great man and an amazing teacher who brought kindness and warmth to everything he did and all he met.
You can read more on Father Drinan, among other places, at the WSJ Law Blog and Georgetown's touching page of student, staff and faculty tributes.
Bill Patry has just published Patry on Copyright -- a seven volume treatise on copyright law and the first new copyright treatise in seventeen years according to Patry. Patry spent seven years working on his nearly 6,000 page treatise and brings a distinguished background to the subject. He is currently Google, Inc.'s Senior Copyright Counsel, he was a professor of copyright law at Cardozo (and an adjunct professor at my alma matter, the Georgetown University Law Center), copyright counsel to the U.S. House Judiciary Committee and Policy Planning Advisor to the Register of Copyrights. You can see the table of contents here and you can buy Patry on Copyrights here. You can also read Patry's own thoughts about his treatise on his Patry Copyright Blog or give him feedback on the treatise at his Patry Treatise Blog, both hosted by Google's Blogger, of course.
This appears to be an excellent, exhaustive resource for copyright practitioners and academics. Stay tuned for more from Patry himself on his treatise. Later today or tomorrow I will be posting the Blog's first e-interview (of Patry), which I plan to make a quasi-regular Blog feature.
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