Posts in Copyright

Journalism Competition and Preservation Act Moves Out of Committee Despite Concerns

This morning, the full U.S. Senate Committee on the Judiciary convened an executive business meeting during which the committee advanced S. 673, the Journalism Competition and Preservation Act (JCPA). Though the bill was reported favorably with an amendment drawing support from the Republican members of the committee, others on the Senate Judiciary raised concerns that could presage further debate after it hits the floor of the Senate. The JCPA was first introduced into both houses of Congress last March, with Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) sponsoring the Senate version and Representatives David Cicilline (D-RI) and Ken Buck (R-NY) sponsoring the version introduced into the House of Representatives.

Taking Control of the Game: How Sports Rights Owners are Fighting Piracy

On August 18, 2022, Albert Pujols hit a grand slam against Austin Gomber for his 690th career home run. A clip of that home run was posted on Reddit before the official Major League Baseball (MLB) app was updated. Three years ago, the post would have been taken down quickly. Today, it has thousands of fans commenting on it instead. In 2020, MLB reversed course on a long-established content policy by going beyond simply allowing fans to post clips and highlights of MLB games. They introduced Film Room, a product that lets fans search clips, make reels, and post them to social media. This decision was made with intent – to take back control over how its media was being used online. “I think we’re at the point now where we believe that making our content available for our fans, particularly our younger fans, in a way that’s easy for them to consume, is really important,” Chris Marinak, MLB’s chief operations and strategy officer told Sporting News.

Perlmutter Reports to IP Subcommittee on CCB Performance, Deferred Exam Alternatives

The Senate Judiciary Committee’s Subcommittee on Intellectual Property yesterday held a hearing on “Oversight of the U.S. Copyright Office,” with Register of Copyrights and Director of the Copyright Office, Shira Perlmutter, as the sole witness. Perlmutter updated the senators on a number of projects in process, including how the Copyright Claims Board (CCB), a small copyright claims tribunal implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act, is working so far.

Petitioner Pushes Back on Texas AG’s Arguments in Plea to High Court to Review Copyright Takings Case Against Texas A&M

The petitioner in a case challenging the U.S. Court of Appeals for the Fifth Circuit’s ruling that affirmed a Texas court’s dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of his manuscript filed a reply brief Monday, arguing that the opposition provides “no escape hatch… for states’ particularly egregious intellectual property violations.” Michael Bynum, a sports writer and editor, and publishing company Canada Hockey L.L.C., doing business as Epic Sports, said that the Texas Attorney General’s August 19 brief in opposition was “bristling with aggressive and controversial legal positions” and that the Fifth Circuit’s decision “undermines federal copyright protection from state predation.”

‘Nothing Compares 2 U’: SCOTUS to Determine What’s Fair in Warhol v. Goldsmith

While Prince might have written the song “Nothing Compares 2 U,” Sinéad O’Connor transformed the tune, made it her own and it became a mega hit. In a similar vein, photographer Lynn Goldsmith took a photograph of Prince in 1981 that artist Andy Warhol used as a basis for his 1984 “Prince Series” silkscreen prints. Did Warhol infringe Goldsmith’s copyright by using her photograph as the basis for his prints or was his work sufficiently transformative to be protected as “fair use”? That is the question at the heart of the case that the United States Supreme Court will hear in its fall 2022 term. This case may prove to be the most significant Supreme Court fair use case to date.

Eleventh Circuit Affirms Finding that Takedown Notice for Auto Stickers Violated DMCA

The U.S. Court of Appeals for the Eleventh Circuit on Wednesday affirmed a district court’s comprehensive order finding that Day to Day Imports, Inc. (DDI) acted with willful blindness in submitting a fifth Takedown Notice to Amazon asking that auto stickers it alleged infringed its licensed artwork be removed from the site. DDI took a license in 2016 to the copyright for artwork created by Harold Walters for a set of replacement stickers for the dashboard climate controls for certain General Motors vehicles. In 2018, Alper Automotive, Inc. began selling a sticker that DDI alleged infringed the licensed copyright. DDI sent Takedown Notices to Alper on May 8, 2018; May 15, 2018; August 2, 2018; and November 1, 2018.

The Copyright Claims Board: A Venue for Pursuing Actual or Statutory Damages Impacting Both Registered and Unregistered Works

The Copyright Claims Board (CCB), established by the CASE Act passed in December 2020, is now up and running and taking cases. The CCB is an alternative to federal court. Just like patents, copyrights are bound by federal law. Previously, a copyright owner would have to take their case to federal district court to in order to seek damages or relief. But the CCB allows a claimant to bring a copyright suit before a tribunal at the Copyright Office instead.

The Supreme Court is Set to Hear a Copyright Case with Big Implications for U.S. Tech Innovation

The U.S. Supreme Court (SCOTUS) is set to hear Andy Warhol v. Lynn Goldsmith in October. It will be the latest in a series of cases the Court has taken on over the last decade-plus that promise to change U.S. innovation as we know it. The case will be heard on the heels of other controversial SCOTUS decisions that have drastically changed the legal landscape, with rulings that transfer power from the federal government to the individual states (Dobbs v. Jackson Women’s Health Organization) or that reduce federal oversight altogether (West Virginia v. EPA). It has also put limits on specific executive powers and plans to rule soon on affirmative action. Not getting as much attention, but arguably equally important, are some recent and not-so-recent decisions that have changed the landscape of the rights of authors and inventors, and the upcoming Warhol case, which may effectively remove them altogether. Unfortunately, many people, including politicians and academics, don’t understand—or refuse to recognize the importance of—intellectual property rights for the advancement of civilization.

Blockchain IP: DAOs Are Innovative—But Will They Be Inventors?

Intellectual property (IP) provides us a front row seat to the cutting-edge of technology. The legal questions arising at this frontier are often as complex as the resulting inventions and creative works. The Federal Circuit’s recent Thaler v. Vidal opinion clarifies an important patent law concept, specifically whether an artificial intelligence (AI) may be listed as the inventor of a patent. The current industrial revolution powered by blockchain and crypto continues to raise issues about how it meshes with our current IP legal framework…. The latest question at the cutting-edge of “who, or what may, be an inventor” begs whether a decentralized autonomous organization (DAO), a new type of digital blockchain-based organization, can participate in IP-related activities, including the invention, ownership, licensing, and enforcement of patent rights.

Win for Photographer in Ninth Circuit Reversal of Fair Use Finding

On August 3, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in McGucken v. Pub Ocean Ltd. that reversed a Central District of California’s sua sponte grant of summary judgment to Pub Ocean on McGucken’s copyright infringement claims. The case involved Pub Ocean’s unauthorized use of photos of a lake that formed in Death Valley, California, in March 2019. The Ninth Circuit found that all of the fair use factors weighed against a determination that Pub Ocean’s unlicensed use of the photographs were transformative.

Copyright Office Tells Tillis Deferred Copyright Examination Will Not Achieve Cost Reductions

On August 1, the U.S. Copyright Office sent a report  addressed to Senator Thom Tillis (R-NC) detailing the results of the agency’s study into the feasibility of a deferred registration examination (DRE) option for copyright applicants seeking registration under U.S. law. While the Office recognized the genuine concerns of those seeking the creation of such an option, the report issued by Register of Copyrights Shira Perlmutter concluded that alternative approaches for addressing those issues would achieve better results than the proposed deferred examination option.

Testing the Bounds of Copyright Protection in Choreographic Works: Hanagami v. Epic Games, Inc.

In a recently filed suit involving the popular videogame Fortnite, the Central District of California faces an important question regarding copyright law: does a copyright in a registered choreographic work extend protection to a smaller portion of the work when that portion is copied by a third party and implemented as a dance move in a video game? Owned and developed by Epic Games, Inc. (“Epic”), Fortnite is a “battle royale” style videogame where players fight to be the last person standing. Fortnite players can purchase “emotes,” which are dance moves or other gestures performed by their avatar. Plaintiff Kyle Hanagami owns a copyright registration for a choreographic work called “How Long Choreography.” Hanagami alleges that an emote called “It’s Complicated” copies “the heart” of his work, as it is the only section of the How Long Choreography that occurs ten times throughout the original.

IP Issues for Retail Businesses Advertising in Augmented Reality

With the advent of augmented reality systems, unique opportunities exist for retail businesses. The ability to provide dynamic and layered advertisements can add a new dimension and effectiveness to attracting consumers to a brick-and-mortar retail location. However, a number of intellectual property pitfalls appear to be awaiting those retailers that utilize the emerging augmented reality platform to reach and attract customers. For instance, a retailer may find that they do not own the exclusive rights to display augmented reality content to customers despite the customers being physically present in their own store.

Intellectual Property Risks in the Metaverse: Protection, Jurisdiction and Enforcement

The metaverse is commonly known as “a collective virtual shared space, created by the convergence of virtually enhanced physical reality and physically persistent virtual space, including the sum of all virtual worlds, augmented reality, and the Internet.” The metaverse may eventually provide a three-dimensional or virtual world for users to shop, play games, travel, learn, socialize, work, compete, or otherwise experience life in a virtual environment. Users may eventually visit the metaverse for an activity or even choose to live much of their life in this virtual world.

Copyright Office Study Finds Protections for News Publishers are Adequate

On June 30, the U.S. Copyright Office officially published a report titled Copyright Protections for Press Publishers, which explores existing frameworks in nations around the world providing additional rights under copyright law for news publishers, and includes recommendations regarding similar changes that could be effected under U.S. law. The Copyright Office’s study concludes that, while the news publishing industry is facing significant problems in obtaining adequate funding during the Internet era, those problems are not due to any current shortcomings in the state of U.S. copyright law.