Posts in Copyright

Washington Insiders Say Farewell to 2020 and Look Ahead to 2021

As we thankfully see 2020 fading into the rear-view mirror and all look forward to a hopefully much better 2021, we want to take a moment to reflect on what the past year brought us and how the stage is set for another very fluid and consequential year for intellectual property policy. In times like these, it is clear that leadership matters more than ever. During some of the most challenging times our country has faced, there were a number of places where we saw strong leadership result in tangible progress. This year has already shown us a dramatic first few days. Beyond the tragic events in the U.S. Capitol, we saw the somewhat unexpected shift of power in the Senate to Democratic control based on the election of both Rev. Raphael Warnock and John Ossoff in Georgia. It is clear that the new Congress and the new Biden Administration will face huge challenges before we approach anything close to “normal” in any sense. That said, when it comes to IP, what can we expect?

Minaj-Chapman Copyright Settlement is a Warning to Artists

Last week, documents were filed confirming that singer-songwriter Tracy Chapman accepted Onika Tanya Maraj’s (who performs rap under the stage name Nicki Minaj) Rule 68 Offer of Judgment, dated December 17, 2020, in the amount of $450,000, inclusive of all costs and attorney fees. In September 2020, the U.S. District Court of the Central District of California granted partial summary judgment in favor of Minaj, resolving a copyright infringement dispute originally filed in 2018 by Chapman over Minaj’s unauthorized use of Chapman’s 1988 single, “Baby Can I Hold You.” While the district court’s partial summary judgment ruling for Minaj said that Minaj had established a fair use defense to Chapman’s copyright infringement claims, it also said Chapman’s distribution claim should be tried and resolved by a jury, so the case moved forward.

The Copyright Top Five of 2020

From the Google v. Oracle arguments to Congress’ year-long discussion around reform of the Digital Millennium Copyright Act (DMCA), 2020 was a big one for copyright law. A discussion draft of the DMCA reform bill was released on December 22 by Chairman of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, Thom Tillis (R-NC), and was meant to solicit comments from stakeholders and other interested parties. Chances the bill will be signed into law anytime soon are slim, but proposed changes such as lowering the specificity with which copyright owners must identify infringing material in certain cases and replacing the notice-and-takedown system in existing law with a “notice-and-staydown” system, would mark a new era in the U.S. copyright regime.

Dorsey Responses to Senators on Copyright Reform Show Contempt for Congress and IP

On December 28, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, sent another letter to Twitter CEO Jack Dorsey expressing disappointment over the company’s continued refusal to cooperate on hearings around copyright reform. Tillis and Coons were joined by Senator Mazie Hirono (D-HI), as they often are on IP issues. The letter reiterated the senators’ frustration that Twitter refused to provide a witness for the IP Subcommittee hearing on December 15 focused on the role existing technology plays in curbing online piracy. In an all too kind characterization, the letter sent by Senators Tillis, Coons and Hirono also expressed disappointment with the “incomplete responses to written questions sent by Chairman Tillis in advance of the hearing.” Frankly, the “answers” to the questions presented by Chairman Tillis by Dorsey for the record were completely non-responsive. Indeed, Dorsey demonstrated complete disinterest in substantive engagement, an absolute lack of good faith, and conscious disregard—near contempt really—for the duty of candor owed by witnesses to the Subcommittee.

Europe’s Top Five (Non-Patent) IP Developments of 2020

In a previous piece, we covered the top five patent developments of the year in Europe. Here, we review some of the key cases and legislation that shaped 2020 in other areas of IP, including trademarks, copyright, design and legislative actions. At number one, in its judgment in Sky v SkyKick (Case C-371/18) in January, the CJEU said that an EU trademark cannot be invalidated for lack of clarity and precision, and provided guidance on what constitutes bad faith. The decision reassured owners of trademarks in Europe, who had feared that many marks would be invalidated if the Advocate General’s Opinion were followed.

Holiday Gifts for IP Owners: Several Significant IP Bills Passed Last Minute by Congress

Late Monday evening, Congress passed a massive omnibus budget bill to avert a federal government shutdown and provide critical COVID-19 relief.  But that is not all – much to the surprise of the intellectual property world, the last-minute bill included several pieces of legislation, previously thought to be sidetracked in light of the current lame duck administration, that will alter the landscape of trademark, copyright and patent law as we know it. The changes include a Trademark Modernization Act that restores the rebuttable presumption of irreparable harm when a Lanham Act violation has been proven, allowing brand owners to more easily obtain injunctions, and the creation of a copyright small claims tribunal within the Copyright Office.