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Advanced Copyright Law Annual Review 2013


Speaker(s): Alida Camp, Gloria C. Phares, Lateef Mtima, Nancy J. Mertzel, Peter Jaszi, Richard Dannay, Simon J. Frankel
Recorded on: Apr. 19, 2013
PLI Program #: 42129

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.


Alida Camp is a full-time mediator/arbitrator. She specializes in alternative dispute resolution of entertainment, construction, employment, and commercial cases. In addition to her private practice, she is a mediator for the American Arbitration Association, the U.S. District Court for the Eastern District of New York, New York Supreme Court (Commercial Division), Volunteer Lawyers for the Arts, the U.S. Equal Employment Opportunity Commission, FINRA (the Financial Industry Regulatory Authority), and is a member of the roster of neutrals for CPR (International Institute for Conflict Prevention and Resolution).

 Alida has organized and presented programs on mediation and arbitration, including mediation advocacy and breaking impasse, at bar associations, law firms, the AAA, and other not-for-profit organizations. She has guest lectured on mediation to students at Columbia University Law School, has worked with New York Law School students in their Small Claims Court mediations, and has conducted mediation trainings for Volunteer Lawyers for the Arts.

 A Fellow of the American Bar Association, Alida is actively involved in promoting the use of ADR. She was named an Entertainment Industry Power Mediator by the Hollywood Reporter and an Outstanding Volunteer by Volunteer Lawyers for the Arts.

 As a former film producer and business/legal affairs executive at Concorde-New Horizons Picture Corp., Alida is keenly aware of the issues facing parties in entertainment related disputes. She strongly believes that mediation could be the best method of addressing business and personal disputes.

Alida holds a J.D. degree with honors from the Columbia University School of Law and is a Phi Beta Kappa graduate with a B.A. in psychology with honors from SUNY Binghamton.
 


Frankel Simon

Primary Areas of Practice: 

Copyright, trademark and right of publicity litigation; Global privacy & data security litigation; Legal issues related to visual art

Law School/Graduate School

Yale Law School (J.D.); Cambridge University (M.Phil.); Harvard University (B.A.)

Work History: 

  • Partner, Covington & Burling LLP (2006-present)
  • Partner and associate, Howard, Rice, Nemerovski, Canady, Falk & Rabkin (1994 to 2006)
  • Law Clerk, Judge Pierre N. Leval, S.D.N.Y. (1992-93)
  • Law Clerk, Judge Stephen Breyer, 1st Cir. (1991-92)


Professional Memberships:
 

Copyright Society of the USA, Member (Chair, Northern California Chapter, 2009-2011); Member, American Law Institute
 


Peter Jaszi teaches domestic and international copyright law at American University Law School, writes about copyright history and theory, and supervises students in its Glushko-Samuelson Intellectual Property Law Clinic, which he helped to found in 2001. With Craig Joyce, Marshall Leaffer, Tyler Ochoa, and Michael Carroll, he co-authors a standard copyright textbook, Copyright Law (Lexis, 9th ed., 2013). He and Martha Woodmansee edited The Construction of Authorship, published by Duke University Press in 1994.  Their new collection, Making and Unmaking Intellectual Property (edited with Mario Biagioli), was published by the University of Chicago Press in 2011. In 1994, Prof. Jaszi was a member of the Librarian of Congress' Advisory Commission on Copyright Registration and Deposit, and in 1995 he was an organizer of the Digital Future Coalition. He is a Trustee of the Copyright Society of the U.S.A., and a member of the editorial board of its journal. Since 2005, Prof. Jaszi has been working with Prof. Patricia Aufderheide of the American University's Center for Social Media on projects designed to promote the understanding of fair use by documentary filmmakers and other creators (see www.wcl.american.edu/pijip/go/fair-use).  Their book, Reclaiming Fair Use, was published in 2011 by Chicago. In 2006-07, Prof. Jaszi led an interdisciplinary research team, funded by the Ford Foundation, investigation the connections between IP and the traditional arts in Indonesia; their report is at www.wcl.american.edu/pijip/go/news/professor-peter-jaszi-authors-report-on-protection-of-the-traditional-arts-in-indonesia.  In 2007, Professor Jaszi received the American Library Association's L. Ray Patterson Copyright Award. In 2009 the Intellectual Property Section of the District of Columbia Bar honored him as the year's Champion of Intellectual Property, and in 2011 he was recognized with an IP3 award from Public Knowledge. Prof. Jaszi currently serves on the board of ITVS, an important funder of documentary film projects. 


Lateef Mtima is a Professor of Law at the Howard University School of Law. After graduating with honors from Amherst College, Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder and later editor-in-chief of the Harvard BlackLetter Journal. He is admitted to the New York and Pennsylvania bars and has practiced intellectual property, bankruptcy, and commercial law, including a decade in private practice with the international law firm of Coudert Brothers. Currently a member of the Advisory Council for the United States Court of Federal Claims and the BNA Patent, Trademark & Copyright Journal Advisory Board, Professor Mtima has held the post of Distinguished Libra Visiting Scholar in Residence at the University of Maine School of Law, is a past President of the Giles S. Rich Inn of Court for the United States Court of Appeals for the Federal Circuit, and was a member of the founding Editorial Board for the American Bar Association intellectual property periodical Landslide. Professor Mtima is the Founder and Director of the Institute for Intellectual Property and Social Justice, an accredited Non-governmental Organization Member of the World Intellectual Property Organization (WIPO).


Nancy Mertzel has more than 25 years of experience protecting brand names, products, content and technology.

She has litigated numerous copyright, trademark, trade dress, unfair competition and trade secret disputes. She has an affinity for matters involving source code and technology, and has successfully handled cutting edge cases involving the scope of copyright protection in source code and data.  For example, she successfully defended a claim of copyright in numbers in BanxCorp v. Costco Wholesale Corp., 978 F.Supp.2d 280 (2013).  She also handles trademark infringement cases, disputes between developers and licensees, trade secret cases involving software, entertainment industry disputes, Trademark Trial and Appeal Board disputes, and recovery of domain names.

On the transactional side, Nancy handles trademark clearance, prosecution and portfolio management, and drafts a wide variety of agreements including copyright and trademark licenses, software licenses and software development agreements and end user license agreements. She also advises clients on copyright issues including the scope of protection in data, fair use and infringement.

Nancy is an active member of the bar and a frequent speaker and author.   She recently completed a term as a board member of the American Intellectual Property Law Association (AIPLA) and has served as an officer of the Copyright Society of the USA. 

As part of her bar work for AIPLA, on February 26, 2015, Nancy testified before the House Judiciary Committee at a hearing on “The U.S. Copyright Office: Its Functions and Resources.”  Nancy also wrote AIPLA’s U.S. Supreme Court amicus curiae briefs in Petrella v. Metro-Goldwyn-Mayer, which involved laches in copyright infringement cases, SCA Hygiene Products A.G. v. First Quality Baby Products, LLC, which involved laches in patent cases, and B&B Hardware, Inc. v. Hargis Industries, Inc., which involved the preclusive effect of decisions by the Trademark Trial and Appeal Board on subsequent litigation.

In 2016 and 2017, World Trademark Review named Nancy a leading lawyer for enforcement and litigation, calling her a “well-spoken and zealous advocate” who “handles the whole nine yards of brand development and enforcement.”  Since 2009, Nancy has been named one of Thompson Reuters' New York Super Lawyers for Intellectual Property Litigation, as well as one of the publication's top 50 NY women attorneys (2013-2017).

Nancy is a graduate of American University’s Washington College of Law (J.D.) and the University of Rochester (B.A.)


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).