Published Articles

  1. April 21, 2011

    Can We Keep Those Gray Market Goods Out of Here? The Unresolved Tension Between §§ 109 and 602 of the Copyright Act Following the 4-4 Split in Costco v. Omega

      The BNA Patent, Trademark & Copyright Journal recently published my article dealing with the aftermath of the deadlock in Costco v. Omega. The article analyzes the policy issues in conflict and provides some guidance about how those in the copyright supply chain-manufacturers, importers, distributors and retailers- can protect themselves from claims under Section 602 of the Copyright Act.

  2. September 30, 2010

    Sony BMG v. Tenenbaum: Are File-Sharing Willful Infringers in Copyright Litigation Now a Judicially Protected Class?

      I know the title sounds a bit  provocative.  But the opinion in Sony BMG v. Tenenbaum protects a willful music downloader in copyright infringement litigation based on a bizarre interpretation of the Digital Theft Deterrence Act of 1999. Here is my article published in a recent BNA Patent Trademark & Copyright Journal (respectfully) critical of the court’s opinion.

  3. June 30, 2010

    A Primer for Non Lawyers Explaining Statutory Damages in Copyright Litigation

      The Association of Media Photographers recently asked me to write an article for its members explaining statutory damages in copyright litigation. I wrote the article, published in the spring 2010 ASMP Bulletin, to give copyright holders a basic understanding of what statutory damages are, how copyright holders qualify for statutory damages through registration of their copyrighted works and how courts and juries calculate these damages. 

  4. May 20, 2010

    Is This Legal Alchemy? When A Copy of Another’s Work May Become Transformative For Fair Use Purposes

    Published in New York State Bar Entertainment, Arts and Sports Law Journal, Spring 2010;  for a published copy, go to link. Predicting a fair use outcome in copyright litigation is not for the faint of heart. There are no bright-line rules; instead, the statute calls for case-by-case analysis, directing courts to weigh four illustrative and non-exclusive factors.(1) But there is one guidepost that parties often overlook when attempting to determine if the defense of fair use applies to a claim of copyright infringement.

  5. March 19, 2010

    Old Wine in New Bottles: May a Licensee Exploit Previously Licensed Content Without the Consent of the Copyright Owner?

    Published in BNA Patent, Trademark & Copyright Journal, 79 PTCJ 607, 3/19/10.

    Technology continues to create attractive new products, including e-books and iPods, that give users access to a vast number of previously licensed copyrighted works. But when a new product exploits these works without the permission of the copyright holder, litigation is likely, especially where the new use has significant economic value.

  6. December 1, 2009

    Statutory Damages in Copyright Litigation

    Article published in 81 New York State Bar Journal on p. 30 November/December, 2009. To read the full article download the PDF here, or go to the following link on the Tannenbaum Helpern website: The article answers the following questions: 1. May the copyright holder recover statutory damages for post-registration infringing conduct that began pre-registration; 2.

  7. October 1, 2009

    Copyright Basics published in Imprints, Fall 2009

    On January 8, 2009, Andrew Berger, joined by Nancy Wolff, explained to a large audience of PWP members at Pratt Institute some copyright basics. A summary of Andrew’s presentation appears below.

    What are the Qualifications for Copyright?

    Copyright protects “original works of authorship,” such as photographs, whether or no published. But the photograph must be fixed in a tangible medium such as on paper or on a computer’s hard drive.

  8. June 1, 2005

    The Right of Publicity Explained Published in ASMP Bulletin, Fall 2005

        When you use another’s likeness without that person’s permission, you may have a multi-million-dollar problem.  A jury in California recently awarded a kindergarten teacher, Russell Christoff, $15.6 million because Nestle U.S.A. violated his right of publicity by using his image without authorization on its Taster’s Choice coffee labels.     Please note; since this article was published in 2005 the jury verdict was reversed.

  9. April 16, 2005

    When Is A Parody Protected By Fair Use, Posted on

    This article focuses on a David v. Goliath copyright battle. Thomas Forsythe, a professional photographer, created more than 70 photographs that parodied the Barbie doll. Mattel, not pleased that its billion-dollar Barbie line was the subject of ridicule, sued Forsythe for copyright infringement. After 4 years of litigation, Mattel lost its case and had to pay Forsythe’s legal fees and expenses totaling more than $2 million, which Forsythe received as he advised me in a phone call.

  10. April 1, 2005

    “Hey, That Looks Like Mine” The Law of Substantial Similarity Explained Posted on

    Have you ever looked at another’s work and thought it was yours? If so, you may have angrily asked yourself, “can they get away with this?” Here is some guidance. In a nutshell, to show infringement, you need to prove that the alleged infringer actually copied your work and that the copy is substantially similar to yours. Copying requires that you show that the infringer had access to your work.

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