• Intellectual Property Rights

Copyright

United States Court of Appeals

Paul Oravec v Sunny Isles Luxury Ventures, L.C.,Sieger Suarez Architectural Partnership INC., Dezer Properties LLC, Dezer Development, LLC, Michael Dezer, et al.

Summary Judgment Standard-Whether summary judgment de novo,can be granted in the copyright infringement cases

Present court recognized that non-infringement may be determined as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.

Infringement of Copyright under copyright Act - What constitutes infringement of copyright

To establish copyright infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. There should be substantial similarity i.e. where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. Not all copying constitutes infringement. The substantial similarity analysis must focus on similarity of expression, i.e., material susceptible of copyright protection. Copyright protection does not extend to ideas but only to particular expressions of ideas. As per 17 U.S.C. § 102(b), in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.

Whether the architectural work come under the Copyright protection and to what extent

The copyright Act17 U.S.C. § 101 includes the definition of "architectural work" and defined it as the arrangement and composition of spaces and elements in the design. According to 17 U.S.C. § 101 the Copyright Act's definition of "architectural work" excludes "individual standard features" from the protectable elements of the design. Thus, while individual standard features and architectural elements classifiable as ideas are not themselves copyrightable, an architect's original combination or arrangement of such features may be. Court opine that no reasonable jury, properly instructed, could find the competing works substantially similar without implicitly finding that appellant owns a copyright in an idea. Hence present work of the Appellant does not come under the protection of copyright Act.

• Public International Law

United States Court of Appeals

St. Paul Fire and Marine Insurance Company; Charter Oak Insurance Co. v. District Court for the Western District of Missouri Building Construction Enterprises, Inc and others

Choice-of-law determination de novo - Whether the substantive law of the forum state (Missouri law) or substantive law of the place where the alleged harm is caused (Kansas law) should govern the insurance policies of the Appellant

Applying Restatement (Second) of Conflict of Laws § 188 test, Missouri had more substantial contacts than did Kansas and nothing in the policies indicated that the parties anticipated Kansas as the primary location for the insured risks. Missouri was not only the location place of contracting for the purpose of entering into the insurance contracts of Appellant's headquarters, but the location of Appellant's insurance agent and the place of contracting for the purpose of entering into the insurance contracts. No indication that the parties intended a different state's laws to control interpretation of the insurance policies for each written construction contract. There was no single principal location for the insured risk under the policies such that the general test of Section 188 rather than the site-specific test of Section 193 controls. Hence the law of the forum state (Missouri law) will apply.

• Civil Laws

United States Court of Appeals

Hector Gandara, a.k.a. Hector Gandarasegredo, v. Sheriff Wayne Bennett, Glynn County, DOE, unknown investigator, Glynn County Sheriff Office, Gary Moore, Glynn County District Attorney,

Interpretation of convention - Whether the Vienna Convention on Consular Relations contains private rights and remedies enforceable in US courts under 42 U.S.C. § 1983 by individual foreign nationals who are arrested or detained in the country

As held by the court of appeal, the Vienna Convention on Consular Relations does not confer individually enforceable rights on detained foreign nationals. In United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000), court held that Article 36 of the convention does not create privately enforceable rights. The preamble clearly states that the purpose of such privileges and immunities created by the Treaty is not to benefit individuals

In Cornejo v. County of San Diego, 504 F.3d 853, 872 (9th Cir. 2007) it was held that a treaty must be interpreted as a whole in light of its object and purpose, including the preamble. The preamble to the Vienna Convention is clear that the drafters did not intend to create individual rights .It is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.

In Maharaj v. Sec'y for the Dep't of Corr., 432 F.3d 1292, 1307 (11th Cir. 2005) also it was held that clear language of the Convention did not create individual rights).

In United States v. Rodriguez, 162 Fed. Appx. 853, 857 (11th Cir. 2006) it was held that the Vienna Convention does not confer judicially enforceable individual rights.

Moreover Vienna Convention is self-executing and all self-executing treaties do not necessarily provide for the availability of such private actions.

In Cornejo v. County of San Diego, 504 F.3d 853, 872 (9th Cir. 2007),it was held that for any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. Although the convention in issue is the self executing treaty but it does not confer any individual rights. Hence the Appeallant cannot claim private damages under this treaty.

Big Top Koolers, INC., a Florida Corporation, Nicholas C. Brienza, v. Circus-Man Snacks, INC.,a New York Corporation,

Motion of relief by the plaintiffs - Whether Lack of notice of the entry affect the time for appeal or relieve under Fed. R. Civ. P. 60(b)

Relaying upon Lucas v. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) and quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77 S. Ct. 307, 308 (1957), Court held that lack of notice of the entry does not affect the time for appeal or relieve. Mere contention of the plaintiff that their counsel did not receive notice of a final order entered by the Court did not entitle him for rehearing or file a notice of appeal. Court opines that there is no reversible error in denial of the motion of plaintiff because of two reasons. Firstly, the time for filing notice of appeal had not expired. And, secondly, Rule 60(b) no longer provides a basis to extend the time to file a notice of appeal because of failure to receive notice of the final judgment. Lack of notice of the entry does not affect the time for appeal or relieve, or authorize the court to relieve a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure 4(a)." Fed. R. Civ. P. 77(d)(2).

In Vencor Hospitals, Inc. v. Standard Life & Accident Insurance Co., 279 F.3d 1306 (11th Cir. 2002), the court denied the motion of plaintiff, claiming appeal after the expiration of Rule 4(a)(6)'s 180-day limitation on the ground that notice of final order is not received by them. Rule 4(a)(6), a product of a 1991 amendment, provides the only vehicle for extending the time to file notice of appeal because of lack of notice of the final judgment.