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On Monday, the U.S. Supreme Court passed on the opportunity to review two cases that have garnered attention in the entertainment industry.
In one case, Mark Towle, a California mechanic who made replica Batmobiles, aimed to have the high court take a look at an opinion from the 9th Circuit Court of Appeals that Batman’s vehicle of choice deserves copyright protection. Towle, who sold his replicas for $90,000 apiece and was sued by Warner Bros. subsidiary DC Comics, argued that the Batmobile is merely functional — a “useful article,” legal-speak for a utilitarian rather than artistic object.
In her opinion in Sept. 2015, 9th Circuit judge Sandra Ikuta agreed with DC that the Batmobile is not just a “useful article” — excluded from copyright protection — but that it’s also a “character” with “physical as well as conceptual qualities,” and “sufficiently delineated” to be recognizable whenever and wherever it appears.
The Supreme Court, without comment, denied Towle’s cert petition seeking to introduce the arguments that Congress specifically excluded this subject matter from copyright protection and that the Batmobile hardly displays any personality traits or any consistent and widely-identifiable physical attributes that can be separately protected by copyright as a “character.”
The mechanic joins the world’s largest corporation on the outside of the Supreme Court.
Also on Monday, Apple couldn’t get the justices to take up a review of its actions in the e-book market.
The case dates back to 2012 when the Justice Department and various state attorneys brought legal action after Apple introduced the iPad, launched the iBookstore and came to deals with the biggest book publishers. Apple was accused of working with publishers to set higher price points for e-books than Amazon.com, the leading vendor in the market at that time. By employing “most favored nation” contractual clauses, Apple acted as the “hub” in a hub-and-spoke antitrust conspiracy, according to the Justice Department.
In June 2015, 2nd Circuit Circuit Judge Debra Ann Livingston affirmed a district court’s ruling that Apple’s role as the facilitator of horizontal agreements was per se unlawful under the Sherman Act, and that there was “strong evidence that Apple consciously orchestrated a conspiracy among the Publisher Defendants.”
Apple urged the high court to see its role more in the vertical rather than horizontal sense and apply a rule of reason approach towards considering the pro-competitive results of its conduct. The e-books case, however, won’t be the vehicle by which the Supreme Court clarifies the use of contracts between producers and distributors in the antitrust realm.
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