Category Archive for: ‘Contracts’

A guarantee of non-infringement for software supplies to Australian “consumers”?

From 1 January 2011 software will be characterised as goods for the purposes of the consumer guarantee provisions of the Australian Consumer Law (ACL).  Suppliers of software will likely amend their standard licence terms to mitigate the risk of unlimited liability for losses suffered by Australian “consumers” as a result of the software infringing a third party’s IP rights.

Who does this affect?

The new laws raise issues for all software licences with Australian end-customers where either:

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Fitzroy Football Club vs Brisbane Lions

The Fitzroy Football Club and the Brisbane Lions have negotiated a settlement in relation to their dispute over the new logo unveiled by the Brisbane Lions in October 2009. 

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Holden wins the race in domain name dispute

A recent .au Domain Name Dispute Resolution Policy (“auDRP”) dispute involving GM Holden Ltd (“GM Holden”) highlights the relevance of a pattern of behaviour in determining whether domain names have been registered in good faith.  In this case, the fact that the respondent had also registered domain names that included brands such as Toyota, Ford and Chrysler was used to support a finding that the domain names in question had not been registered in good faith.

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Are those real?

Counterfeit products are out there, but it’s not just consumers who need to be cautious.  The Federal Court recently found that art valuer Peter Gant engaged in misleading and deceptive conduct when he valued (in his capacity as a professional) three drawings at approximately $10k each.  The pieces appeared to be the works of famous Australian artists Charles Blackman and Robert Dickerson.  It was later discovered that the works were fake.  They weren’t copies of actual Blackman and Dickerson works, rather they were drawings “in the style” of Blackman and Dickerson and were falsely

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Copyright licensing and a cautionary (fairy) tale

Last week it was reported that DreamWorks LLC, the studio behind the popular animated franchise, “Shrek”, is regretting its decision to allow men’s magazine VMan to use characters from the film in a fashion photo shoot.  The photos features characters such as Shrek, Princess Fiona and Donkey in a variety of scenes, “posing” with scantily-clad models.  The magazine spread has drawn a lot of publicity — some good, some bad — and the photos have variously been described as “racy”, “sultry” and even

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Digital downloads not “goods”

The Supreme Court of New South Wales has confirmed that the supply of software through a digital download fulfilment mechanism is not a supply of “goods” for the purposes of the sale of goods legislation.  The result, which had been anticipated by commentators and practitioners for many years, may lead to legislative reform.

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Hey, leave them tracks alone!

A recent decision by the United Kingdom’s High Court could lead parts of the music industry to call into question the common practice of selling individual tracks on the internet where artists specifically intended that the tracks be heard together.  Where artists designed the tracks to be played together to create an overall experience, unbundling the tracks may undermine their artistic integrity.  The iconic rock band Pink Floyd, well-known for concept albums like Dark Side of the Moon, sought to protect the effect created by playing album tracks together by bringing

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Pow! Biff! Bam! Copyright dust-up over superhero rights

Residents of Metropolis take note… your illustrious superhero is the subject of an American copyright dispute on course for the federal court in ‘downtown’ Manhattan.  Even Superman may be powerless to stop this battle, which has broken out between comic book publisher, Marvel Entertainment LLC, and the heirs of Jack Kirby (long-time Marvel artist and responsible for creating many superhero favourites).

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PPS reforms and collateral

Annie Leibovitz may arguably be the most famous photographer in the world. Her photographs have defined an era; from John Lennon and Yoko Ono on the cover of Rolling Stone to official portraits of Queen Elizabeth II. However, after it was reported that she was forced to take a loan of over $20 million to secure existing debts, it was her financial meltdown that received the most media coverage. Significantly, Leibovitz put up not only her property as collateral, but also the rights to all her current and future snaps until all her financial obligations are met.

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