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Advanced Seminar on Copyright Law 2010

 
Author(s): Richard Dannay
Practice Area: Communications/Telecommunications Law, Corporate & Securities, Intellectual Property
Published: Apr 2010
ISBN: 9781402413872
PLI Item #: 23474
CHB Spine #: G1003

Andrew Berger uses his breadth of experience and creativity to assist his clients to monetize their intellectual property through licensing, joint ventures, sales and related transactions. Andrew also litigates on behalf of those clients to protect their intellectual property from infringement. Many of the cases he has handled successfully are at the cutting edge of the Internet and new technologies.

Further, Andrew has litigated complex commercial matters, including on behalf of the Government of Ecuador, the Women's Professional Tennis Association and a Channel Islands investment company based in Southern Spain.

He graduated from Cornell University and Cornell Law School and is the past president of the Cornell Law Association, the alumni body representing the more than 9,000 graduates of that school.

Andrew currently holds leadership positions in national bar and copyright organizations serving as co-chair of the Copyright Subcommittee of the Intellectual Property Litigation Committee of the ABA’s Litigation Section and as trustee and a member of the executive committee of the Copyright Society of the U.S.A. In 2011 Andrew won the award for the most outstanding subcommittee chair of the Intellectual Property Litigation Committee and also won the Outstanding Service Award from the Copyright Society.

Andrew has lectured on copyright and trademark issues at Cornell Law School, John Marshall Law School in Chicago and at the New School in N.Y. He also taught trial practice at Hofstra Law School for 15 years. He recently became a fellow of the Litigation Counsel of America, is included in Fortune’s  2012 Top Rated Lawyers Guide to Intellectual Property Law, in the 2012 legal elite list published in Avenue Magazine, in the American Lawyer & Corporate Counsel's 2012 top ranked intellectual property attorney listing, and in New York Super Lawyers for 2012.
 
He frequently writes and speaks about intellectual property topics before bar and industry groups, including the Copyright Society, the PLI  Advanced Program on Copyright Law, the Cornell Entrepreneur Network  and the American Conference Institute. He is often quoted in the Wall Street Journal and the National Law Journal about IP issues. Andrew writes an IP blog called IP In Brief  commenting on trends and transformation in copyright and trademark which is at www.ipinbrief.com. He is also an avid Twitter user; his handle is @IPInBrief.
 
Over twenty-five years ago Andrew founded the Litigators Club, a group of about twenty lawyers that meets with judges to discuss matters of common concern regarding litigation in the federal and state courts. The judges from the Second Circuit who have been guests of the Litigators Club include Judges Leval, Livingston and Katzmann and Justice Sotomayor, before she joined the Supreme Court. The state court judges who have been guests of the Litigators Club include Chief Judge Jonathan Lippman of the New York Court of Appeals.

Andrew lives in the Cobble Hill section of Brooklyn with his wife, a federal prosecutor, and a hyper-active Border Collie named Buster.


Edward H. Rosenthal chairs the firm’s Intellectual Property and Litigation Groups. He focuses on intellectual property litigation, emphasizing trademark, copyright, right of publicity, advertising, privacy and publishing matters. His clients include businesses and individuals in the media, advertising, sports, and entertainment fields. Mr. Rosenthal is listed in Best Lawyers in America, Chambers USA America’s Leading Lawyers for Business, and The Legal 500, and he has been named a New York-area “Super Lawyer” for Intellectual Property and by Super Lawyers magazine for eight consecutive years. He is also a certified mediator. Mr. Rosenthal was named one of 19 “Topflight IP Attorneys” in the 2013 Client Service All-Stars Report by BTI Consulting Group.

Mr. Rosenthal also has substantial involvement in issues relating to trademark prosecution and enforcement, representing numerous businesses and individuals in protecting and enforcing their intellectual property. He also represents the estates of deceased celebrities, including Humphrey Bogart, and handles licensing work for the estate and other celebrities and companies.

Mr. Rosenthal represented The Authors Guild and a number of other authors’ rights associations and individuals in suits against Google and the HathiTrust arising out of Google’s mass book digitization and orphan works programs. He defended Fredrik Colting, author of 60 Years Later: Coming Through the Rye, and his U.S. distributor, in a lawsuit brought by J.D. Salinger alleging copyright infringement. Mr. Rosenthal also successfully defended J.K. Rowling and Scholastic Inc., the author and publisher of the Harry Potter books, against claims of copyright and trademark infringement.

Mr. Rosenthal has written and lectured extensively on a wide variety of intellectual property topics. He is a regular presenter to the Practicing Law Institute on the Right of Publicity, and has participated in numerous panels on trademark and copyright law. He was co-editor of Entertainment Law Matters , a blog focused on disputes and developments in the film, television, publishing, theatre, music, art, gaming, and fashion industries. Mr. Rosenthal has also been active in the Copyright Society of the U.S.A. and the International Trademark Association. He serves as co-chair of the Committee on Publicity, Privacy and media of the New York State Bar Association’s Entertainment and Sports Law Committee and as a member of the Copyright Committee of the New York City Bar.

Prior to joining Frankfurt Kurnit Klein & Selz, Mr. Rosenthal served as a law clerk to Hon. Abraham D. Sofaer in the Southern District of New York and was associated with the New York law firm of Kramer Levin Naftalis & Frankel. He was Adjunct Professor at Fordham Law School (Legal Writing, 1985-1986; Intellectual Property Drafting, 1996), and is a graduate of the University of Pennsylvania (BA, 1976) and Columbia University (JD, 1980), where he was Notes and Comments editor of The Columbia Law Review. He is admitted to practice in New York.


Gloria C. Phares is a partner at Patterson Belknap Webb & Tyler LLP, in the firm's IP practice (transactional and litigation). She practices in all aspects of intellectual property, privacy and issues related to the Internet, computer software development and licensing, database licensing, and publicity rights, providing advice, licensing, and litigation to for-profit companies and not-for-profit institutions, including museums, libraries, and colleges and universities.

Gloria is a trustee and past officer of The Copyright Society of the U.S.A. and a past Chair of its New York Chapter. During 1995-98, she was the Chair of the Committee on Copyright and Literary Property of the Association of the Bar of the City of New York. During 1995-2004, she was a member of the Board of Directors of Volunteer Lawyers for the Arts. She was on the Legal Advisory Boards of the 2005 Documentary Filmmakers' Statement of Best Practices in Fair Use and the 2011 Code of Best Practices in Fair Use for Poetry (both sponsored by American University's Center for Social Media).

She lectures for continuing legal education programs on copyright developments and licensing. She's the author of Chapter 2 (Legal Issues in Scholarly Publishing) in the MLA Style Manual and Guide to Scholarly Publishing (3rd edit. 2008); Assigning Exclusive Copyright Licenses: Conflicting Rulings Over Transfer of Rights Highlight Uncertainty in Corporate Acquisitions (with Stephanie B. Glaser), New York Law Journal (May 12, 2003); Extraterritoriality and Copyright Law, Copyright Law '99 and Beyond, (Glasser LegalWorks Seminars, January 1999); Appropriation Art and Copyright, 1 Encyclopedia of Aesthetics 70 (Oxford University Press, 1998 (soon to be updated); Copyright and the U.S. Border: Obtaining Redress in the United States for Extraterritorial Acts of Infringement, Proceedings of the ABA Section of Intellectual Property Law (Summer Conference, Asheville, N.C. June 27, 1996); and Retroactive Protection of Foreign Copyrights:  What Has Congress Be-GATT?, 7 The Journal of Proprietary Rights 2 (April 1995).

From 1980-87, Gloria was an attorney with the Appellate Section of the Criminal Division of the U.S. Department of Justice. She taught Appellate Advocacy for five years at Fordham University's Law school, and she is a Fellow of the American Academy of Appellate Lawyers.

She is a graduate of The College and The Law School of the University of Chicago.


Jan Constantine has over thirty years of legal experience in the practice of general corporate law and litigation, with specific expertise in the areas of intellectual property, trade regulation, labor and employment law.

 In October 2005, Ms. Constantine became General Counsel of the Authors Guild, a non-profit organization representing over 8000 published authors. She is responsible for supervising the Authors Guild's legal department and managing litigation, which currently includes the Authors Guild et al. v. Google, a class action filed in the S.D.N.Y. in September 2005. The case was settled in October 2008 and is waiting for court approval after the February 18, 2010 fairness hearing.

Until July 2005, Ms. Constantine was Executive Vice President of News Corporation, a global media and information company with diversified operations, including the production and distribution of motion pictures and television programming, television broadcasting and on-line information services; the publication of newspapers, magazines, books and promotional free-standing inserts.  She was responsible for legal affairs for U.S. operations in areas of litigation, intellectual property, mergers and acquisitions, corporate financing, bankruptcy, antitrust and trade regulation, labor and employment and supervising the work of the entire in-house legal department as well as outside counsel.  Ms. Constantine lectured to Company employees on topics relating to intellectual property, employment law and Sarbanes Oxley/corporate governance. She is currently a partner with Constantine Cannon, a boutique law firm specializing in antitrust law.

Prior to joining News Corporation, Ms. Constantine was Deputy General Counsel for Macmillan, Inc., a multi-national conglomerate engaged in publishing, information services and electronic publishing, and language instruction.  Her broad responsibilities included managing all legal affairs relating to litigation, mergers and acquisitions, corporate financing, labor and employment, and publishing.  Before her employment with Macmillan, Ms. Constantine was appointed Deputy Chief of the Civil Division of the U.S. Attorney's Office, which followed her employment at the New York Regional office of the Federal Trade Commission.

Ms. Constantine is a longstanding member of The Association of the Bar of the City of New York and she currently serves on its Communications and Media Law Committee. In addition, Ms. Constantine performs with the City Bar Chorus, a community outreach program for representatives of the legal profession. Ms. Constantine also serves on the Board of Directors of The Feminist Press. 

Ms. Constantine is currently an Adjunct Professor at NYU's School of Continuing and Professional Studies and, since 2007, has been teaching a course in "Contracts Negotiation" for the Masters in Publishing degree. In the fall/winter of 2003, Ms. Constantine taught a course on ethics and journalism to graduate students at Baruch Graduate School of Journalism.

Ms. Constantine received a B.A. from Smith College and is a graduate of George Washington University's National Law Center.


Lori Lesser is a Partner at Simpson Thacher & Bartlett LLP, where she practices in the Litigation Department and is Head of the Intellectual Property Transactions Practice and Co-Chair of the Privacy and Cybersecurity Practice. Lori advises on all aspects of intellectual property, technology and privacy law, including corporate transactions, litigation, licensing, outsourcing, strategic agreements and counseling.

Her IP transactional experience includes mergers and acquisitions, securities offerings and secured financings, bankruptcy and restructurings, joint ventures, licensing, outsourcing, counseling and other strategic agreements. Her IP litigation practice comprises trial and appellate work and WIPO arbitrations.

Ms. Lesser is also consistently recognized by Chambers USA, The Legal 500 and The Best Lawyers in America, for which she has been named the “Information Technology Lawyer of the Year” for New York City. She has been listed in the “Top 50 Under 45” U.S. IP Lawyers (IP Law & Business magazine), the “Top 45 Under 45” U.S. women lawyers (The American Lawyer), and “The 20 Most Influential Women in IP Law” (Law360). She has been ranked in New York City’s top 100 lawyers and top 50 women lawyers by Super Lawyers. She has received the Burton Award for legal writing and the Award of Excellence from Volunteer Lawyers for the Arts. Her IP work in private equity deals has been featured on the cover of IP Law & Business.

Ms. Lesser has served as a David Rockefeller Fellow for New York City and corporate partner for GreaterNY and serves on the boards of the Partnership Fund for New York City and the Citizens Budget Commission. She is President of the Harvard Law School Association of NYC and serves on the Executive Committee of the Harvard Class of 1988. She is on the Advisory Board of ChIPs (chief IP counsel), the Business Advisory Council of ProPublica, the Leadership Council of Barnard’s Athena Center for Leadership Studies, and the Hunter College Pre-Law Advisory Board. She is a Fellow of the Foreign Policy Association.

Ms. Lesser graduated from Harvard University (A.B., magna cum laude and Phi Beta Kappa, 1988) and Harvard Law School (J.D., cum laude, 1993).


Richard Dannay is counsel with Cowan, Liebowitz & Latman, P.C., in New York City. He practices in the areas of copyright, publishing and trademark law, and libel, privacy, and publicity rights.

Past president of The Copyright Society of the U.S.A. and one of its Honorary Trustees. Former chair of the New York City Bar Committee on Copyright and Literary Property.

Presented the 37th Annual Donald C. Brace Memorial Lecture (Nov. 2007): “Copyright Injunctions and Fair Use: Enter eBay -- Four-Factor Fatigue or Four-Factor Freedom?” (Copyright Society of U.S.A.); published at 55 Copyright Society Journal 449 (2008).

Author, “Factorless Fair Use? Was Melville Nimmer Right?” published at 60 Copyright Society Journal 127 (2013) in special issue honoring 50th anniversary of Nimmer on Copyright treatise.

Lead counsel for the prevailing parties in the following reported cases:

  • Bill Graham Archives v. Dorling Kindersley Limited, 448 F.3d 605 (2d Cir. 2006) (affirming summary judgment for defendant publisher that “thumbnail” reproductions of seven concert posters in Grateful Dead biography are transformative fair use).
  • Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009) (John Steinbeck’s son’s Sec. 304(d) termination notice invalidated; Penguin’s agreement for Steinbeck works, including The Grapes of Wrath and Of Mice and Men, held valid, not “agreement to the contrary”).
  • Silverstein v. Penguin Putnam Inc., 368 F.3d 77 (2d Cir. 2004) and 522 F. Supp. 2d 579 (S.D.N.Y. 2007) (compilation copyright for all of Dorothy Parker’s previously uncollected poems unenforceable because no creativity in “selection” of “all”; significant Second Circuit pre-eBay ruling on permanent injunctions).
  • Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) (successful defense of copyright infringement suit against Jurassic Park novel and movie).
  • Girl Scouts of the U.S.A. and Boy Scouts of America v. Bantam Doubleday Dell Publishing Group, Inc., 996 F.2d 1477 (2d Cir. 1993), aff'g 808 F. Supp. 1112 (S.D.N.Y. 1992) (successful defense of trademark infringement suit against “Pee Wee Scouts” children’s series, involving First Amendment issues).
  • Arica Institute, Inc. v. Palmer and Harper & Row Publishers, 970 F.2d 1067 (2d Cir. 1992) (successful "fact estoppel" and fair use defenses).
  • Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998) (appellate security bond for “costs” includes potential attorney’s fees under Copyright Act; case of first impression).
  • Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30 (2d Cir. 2010), 16 N.Y. 3d 295 (2011) (on certified question), 640 F. 3d 497 (2d Cir. 2011) (NY long-arm jurisdiction ruling supporting fight of publishers and authors against online digital piracy).
  • Postlewaite v. McGraw-Hill, Inc., 411 F.3d 63 (2d Cir. 2005) (dismissal of law professor’s breach of contract suit against treatise publisher).
  • Hoch and Marble v. MasterCard International and McCann-Erickson, 284 F. Supp. 2d 1217 (D. Minn. 2003) (successful defense of copyright infringement suit against series of baseball-related “priceless” television commercials).
  • Adsani v. Miller, 1996 WL 194326 and 1996 WL 531858 (S.D.N.Y. 1996) (successful defense of copyright infringement suit against author and publishers of “Princess Sultana” books, including recovery of full attorneys’ fees).

Chair of PLI’s annual Advanced Copyright Law program 1991 – 2019.

Harvard Law School (LL.B., 1964). Harvard College (A.B., magna cum laude, Phi Beta Kappa, 1961).


Richard Dannay is counsel with Cowan, Liebowitz & Latman, P.C., in New York City. He practices in the areas of copyright, publishing and trademark law, and libel, privacy, and publicity rights.

Past president of The Copyright Society of the U.S.A. and one of its Honorary Trustees. Former chair of the New York City Bar Committee on Copyright and Literary Property.

Presented the 37th Annual Donald C. Brace Memorial Lecture (Nov. 2007): “Copyright Injunctions and Fair Use: Enter eBay -- Four-Factor Fatigue or Four-Factor Freedom?” (Copyright Society of U.S.A.); published at 55 Copyright Society Journal 449 (2008).

Author, “Factorless Fair Use? Was Melville Nimmer Right?” published at 60 Copyright Society Journal 127 (2013) in special issue honoring 50th anniversary of Nimmer on Copyright treatise.

Lead counsel for the prevailing parties in the following reported cases:

  • Bill Graham Archives v. Dorling Kindersley Limited, 448 F.3d 605 (2d Cir. 2006) (affirming summary judgment for defendant publisher that “thumbnail” reproductions of seven concert posters in Grateful Dead biography are transformative fair use).
  • Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009) (John Steinbeck’s son’s Sec. 304(d) termination notice invalidated; Penguin’s agreement for Steinbeck works, including The Grapes of Wrath and Of Mice and Men, held valid, not “agreement to the contrary”).
  • Silverstein v. Penguin Putnam Inc., 368 F.3d 77 (2d Cir. 2004) and 522 F. Supp. 2d 579 (S.D.N.Y. 2007) (compilation copyright for all of Dorothy Parker’s previously uncollected poems unenforceable because no creativity in “selection” of “all”; significant Second Circuit pre-eBay ruling on permanent injunctions).
  • Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) (successful defense of copyright infringement suit against Jurassic Park novel and movie).
  • Girl Scouts of the U.S.A. and Boy Scouts of America v. Bantam Doubleday Dell Publishing Group, Inc., 996 F.2d 1477 (2d Cir. 1993), aff'g 808 F. Supp. 1112 (S.D.N.Y. 1992) (successful defense of trademark infringement suit against “Pee Wee Scouts” children’s series, involving First Amendment issues).
  • Arica Institute, Inc. v. Palmer and Harper & Row Publishers, 970 F.2d 1067 (2d Cir. 1992) (successful "fact estoppel" and fair use defenses).
  • Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998) (appellate security bond for “costs” includes potential attorney’s fees under Copyright Act; case of first impression).
  • Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30 (2d Cir. 2010), 16 N.Y. 3d 295 (2011) (on certified question), 640 F. 3d 497 (2d Cir. 2011) (NY long-arm jurisdiction ruling supporting fight of publishers and authors against online digital piracy).
  • Postlewaite v. McGraw-Hill, Inc., 411 F.3d 63 (2d Cir. 2005) (dismissal of law professor’s breach of contract suit against treatise publisher).
  • Hoch and Marble v. MasterCard International and McCann-Erickson, 284 F. Supp. 2d 1217 (D. Minn. 2003) (successful defense of copyright infringement suit against series of baseball-related “priceless” television commercials).
  • Adsani v. Miller, 1996 WL 194326 and 1996 WL 531858 (S.D.N.Y. 1996) (successful defense of copyright infringement suit against author and publishers of “Princess Sultana” books, including recovery of full attorneys’ fees).

Chair of PLI’s annual Advanced Copyright Law program 1991 – 2019.

Harvard Law School (LL.B., 1964). Harvard College (A.B., magna cum laude, Phi Beta Kappa, 1961).