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The Supreme Court issued its decision today in Kirtsaeng vs. Wiley which reverses the Second Circuit and which will significantly change the publishing and legal landscape. The Second Circuit had ruled that the term “lawfully made” limited first sale “specifically and exclusively” to works that are made in territories in which the U.S. Copyright Act is law, and “not to foreign-manufactured works." The Supreme Court noted that that library associations, used-book dealers, technology companies,consumer-goods retailers, and museums pointed to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promot[ing] theProgress of Science and useful Arts,” Art. I, §8, cl. 8.
In the recent case of Yudell v Gilbert, the New York State appellate court for Manhattan and the Bronx has clarified the distinction between claims that "belong" to owners (i.e., direct claims) and those claims that belong to the juristic entity (and therefore may be brought by the principals only as derivative claims).
A derivative claim is one that is brought by an owner on behalf of a corporation against a third party. Often, the third party is an insider of the corporation, such as an executive officer or director. Owner derivative suits are unique because under traditional corporate law, management is responsible for bringing and defending the corporation against suit. Owner derivative suits permit the owners to initiate a suit when management has failed to do so.
In the Yudell Case the owners of the juristic entity brought a number of claims against the officers and directors of the entity and a third party for: waste, breach of contract between the entity and the third party, negligence and breach of fiduciary duty.
The Yudell court found that the owners' claims belonged to the entity.
A plaintiff asserting a derivative claim seeks to recover for injury to the business entity. A plaintiff asserting a direct claim seeks redress for injury to him or herself individually. Sometimes whether the nature of the claim is direct or derivative is not readily apparent. New York does not have a clearly articulated test, but approaches the issue on a case by case basis depending on the nature of the allegations. For instance, where shareholders suffer solely through depreciation in the value of their stock, the claim is derivative, even if the diminution in value derives from a breach of fiduciary duty. Allegations of mismanagement or diversion of corporate assets also plead a wrong to the corporation.
The Court stated that in analyzing whether a claim is direct or derivative a court should consider: (1) who suffered the alleged harm (the corporation or the stockholders); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually).
The Court applied this "common sense approach" and found dismissed the owners' claims as belonging to the entity but giving them an opportunity to replead as derivative claims.
Facebook has agreed to pay users up to $10 if they were featured in a "sponsored stories" ad, under revised settlement terms of a class-action lawsuit.
Read more: http://www.mediapost.com/publications/article/184710/facebook-to-pay-users-to-settle-sponsored-stories.html#ixzz28pObxo4M
A split among federal Circuits now exists regarding a trademark licensee's rights to use a mark when the license is rejected in bankruptcy.
Plaintiff was an employee of Metro-North Railroad for 24 years and alleged that in the course of his work that he was exposed to unreasonable levels of occupational noise. Plaintiff alleged that as a result of the noise exposure he sustained injuries and damage to his inner ear and sense of hearing.
The jury agreed with Plaintiff and returned a verdict in his favor for past pain and suffering and for future pain and suffering in the amount of $118,900.
ANE, PC congratulates Mr. Kimmelblatt for recently passing the New Jersey bar exam.
Timely copyright registration of a work provides the copyright holder with a number of legal advantages. The copyright itself is not created by the registation — indeed, the copyright exists as soon as you write an article or snap a photograph — but registration provides a number of benefits.
A denial of access to records under New York’s FOIL can be challenged in court — and the individual seeking records may be awarded attorney’s fees from the government if they prevail.
A federal court in Nevada has tossed out one of Righthaven’s many copyright infringement lawsuits ruling that the company lacked standing to even bring the suit. The court stated that the company was not a legal or beneficial owner of the relevant rights despite an agreement between parties which purported to make Righthaven a legal owner.
Righthaven has made a controversial business of pursuing copyright claims, but questions are arising about whether they have the rights to do so. Read the article on CBS Money Watch