Posts Tagged: "copyrights"

On April 6, the UK High Court issued a judgment of non-infringement in favor of artist Ed Sheeran over his 2017 song, “Shape of You.” The court held that Sheeran did not copy a part of Defendant Sami Chokri’s 2015 song called “Oh Why.” The ruling came nearly four years after co-writers Chokri and Ross O’Donoghue (collectively, Defendants) first accused Sheeran and his co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon (collectively, Plaintiffs) of deliberately and consciously copying from a part of “Oh Why.” Alternatively, the Defendants contended that he did so subconsciously.

The National Academy of Public Administration (NAPA) has agreed to perform a study requested earlier this month by Senator Thom Tillis (R-NC) to explore “whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” NAPA President and CEO Teresa Gerton said its full-time research staff and Academy Fellows are well-positioned to do the work requested and that NAPA would begin discussions with the U.S. Copyright Office and the U.S. Patent and Trademark Office (USPTO) immediately. However, Gerton expressed some skepticism, cautioning that “our success in these negotiations depends greatly on the willing participation of these two agencies and the level of funding they agree to make available for the work.”

The U.S. Supreme Court today granted cert in Andy Warhol Foundation v. Goldsmith, Lynn, et. al., a case that asks the High Court to review a decision of the U.S. Court of Appeals for the Second Circuit holding  that Andy Warhol’s Prince Series did not constitute fair use of Lynn Goldsmith’s photograph. In its petition for certiorari, filed in December 2021, the Andy Warhol Foundation told the Court that “the Second Circuit’s decision…creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art.”

Earlier this month, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act into the U.S. Senate. The bill is designed to address shortcomings with some of the statutory provisions of the Digital Millennium Copyright Act (DMCA) which have failed to incentivize the development of new technical measures for preventing copyright infringement online the way that Congress originally envisioned when passing the DMCA in 1998.

The European Intellectual Property Office (EUIPO) recently published a deep dive report, titled Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs. The report is a product of the Impact of Technology Expert Group, which was established in early 2019. They followed an approach based on Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’ also known as the Code Theory. This describes how human online activity is regulated by law, social norms, and the market, taking into consideration the internet’s technical infrastructure. This approach led to a double-edged sword metaphor, in which a particular technology can be used either to infringe IP rights or to protect/enforce them, presenting to some extent the same features in each case.

In January of this year, Senator Thom Tillis (R-NC) sent a letter to Matthew Wiener, Acting Chairman of the Administrative Conference of the United States (ACUS), and Todd Rubin, ACUS Counsel for Congressional Affairs, asking that the ACUS “conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” But Wiener replied to Tillis’ letter on March 7, indicating that ACUS “has neither the expertise nor resources to conduct” such a study. Instead, Wiener suggested asking an entity better positioned to undertake the task, such as the National Academy of Public Administration (NAPA), which Tillis wrote to today.

Last week, the U.S. Copyright Office issued a pair of final rules to establish various procedures governing proceedings at the Copyright Claims Board (CCB), a small copyright claims tribunal within the Copyright Office. The CCB was implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act enacted under a larger omnibus bill on COVID-19 issues in December 2020. The rules establish procedures for designating service agents for receiving notices of initiated proceedings at the CCB, as well as opt-out procedures for libraries, archives and any claimants who are notified of class action litigation filed in U.S. district court covering their own copyright claim.

Blockchain technology has brought the world a collection of cutting-edge investment opportunities, non-fungible tokens (NFTs) among them. And with the advent of these unique digital assets, comes an entirely novel product segment subject to intellectual property law. For months now, the media has covered stories about NFTs selling for obscene prices. But behind these headlines—and given the onslaught of NFTs that continue to flood the market—are questions regarding trademark and copyright issues raised by these non-interchangeable units of data.

The struggles that most artists endure include creativity blocks and economic hardship; however, British artist Banksy seems unaffected by either of these. His street art is celebrated all over the world for its anti-authoritarian tone and his extremely secretive personal identity. Recently, he has even been venturing into Non-Fungible Tokens. But unwittingly, and rather humorously, Banksy is facing a different kind of dilemma in terms of either revealing his overtly confidential identity or losing exclusive rights to his works.

The Senate Committee on Commerce, Science and Transportation today voted 14-14 to advance the nomination of Gigi Sohn to serve as a commissioner with the Federal Communications Commission. Committee Ranking Member Senator Roger Wicker (R-MS) opposed the nomination, explaining that “the committee’s vetting process has clarified she’s not the right choice to fill this vacancy” due to several conflicts of interest. Groups including the U.S. Chamber of Commerce also vocally opposed Sohn’s nomination this week. In December, Senator Thom Tillis (R-NC) wrote a letter to President Biden asking Biden to withdraw Sohn’s nomination, explaining that her role as a co-founder of the open Internet advocacy group Public Knowledge poses a threat to copyright owners in particular. “[Sohn] is a radical open-content activist with no respect for intellectual property rights,” Tillis wrote.

On February 21, Houston, Texas-based professional photographer Jim Olive filed a reply brief with the U.S. Supreme Court in defense of its petition for writ of certiorari asking the nation’s highest court to grant an appeal in Olive’s copyright infringement suit against the University of Houston System. This case is one of two separate suits seeking to hold Texas public universities accountable for copyright infringement; while sovereign immunity defenses have staved off liability thus far, a recent Takings Clause decision by the Supreme Court has created a path forward for these and other IP owners looking to hold state entities accountable for their IP infringements.

On February 24, 2022, the U.S. Supreme Court vacated the Ninth Circuit’s ruling in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20–915 (Feb. 24, 2022). The Court held that a copyright registration applicant, if unaware of legal inaccuracies in a copyright application, does not submit those inaccuracies “knowingly” for purposes of Section 411(b)(2), and as such, does not lose the protections of the Copyright Act’s safe harbor for registrations with inaccuracies. Undoubtedly, the decision is a win for authors that, during the copyright application process, unwittingly submit inaccurate information to the U.S. Copyright Office (e.g., because they did not understand the law, and/or were not assisted by competent copyright counsel). That said, the decision does not do away with the risks associated with honest mistakes in U.S. Copyright Office filings, and authors should take care to mitigate such risks.

On February 22, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the U.S. District Court for the Central District of California’s dismissal of a copyright suit filed against Apple Inc. and other defendants explaining that dismissal was improper at the pleading stage because reasonable minds could differ on the issue of substantial similarity. The suit was brought by Francesca Gregorini—writer, director, and producer of the film The Truth About Emanuel. She claimed that the first three episodes of Defendants’ AppleTV+ series, Servant, infringed her copyright. In May 2020, U.S. District Judge Walters dismissed Gregorini’s complaint on the ground that the works were not substantially similar as a matter of law. Gregorini appealed to the Ninth Circuit.

In a 6-3 decision today, the U.S. Supreme Court held that Section 411(b) of the U.S. Copyright Act “does not distinguish between a mistake of law and a mistake of fact; lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under §411(b)(1)(A)’s safe harbor.” The decision comes after Unicolors, Inc. petitioned the Court in January of last year, asking whether the Ninth Circuit erred in determining that Section 411 required referral to the Copyright Office on any inaccurate registration information, even without evidence of fraud or material error, in conflict with other circuit courts and the Copyright Office’s own findings on Section 411.

In an opinion letter dated February 14, 2022, the Review Board of the United States Copyright Office (Review Board) affirmed a decision of the U.S. Copyright Office (USCO) denying registration of a two-dimensional artwork generated by Creativity Machine, an artificial intelligence (AI) algorithm created by Dr. Stephen Thaler. Established by regulation in 1995, the Review Board is responsible for hearing final administrative appeals following two opportunities for a claimant to appeal copyright registration refusals. Thaler filed an application to register the computer-generated work, “A Recent Entrance to Paradise,” on November 3, 2018. On the application, Thaler listed Creativity Machine as the author of the work and indicated himself to be the claimant, with a transfer statement explaining he acquired ownership of the work because of his “ownership of the machine.”