Posts in Circuit Courts of Appeal

DIG, Dogs and Bad Wine: Justices Float Scrapping Warner Chappell to Consider Alternate Petition on ‘Discovery Accrual Rule’ for Copyright

Oral arguments took place today in Warner Chappell Music v. Nealy, a case that asks whether a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. The Justices repeatedly asked the parties involved whether they should dismiss the case as having been improvidently granted (DIG) in order to first grant and decide another pending case that directly addresses a technically peripheral, but seemingly crucial, question at issue in Warner Chappell, namely, whether the so-called discovery accrual rule applies to the Copyright Act’s statute of limitations for civil claims.  

Law School Amici Urge SCOTUS to Grant Kroger Petition on Trademark Confusion and Resolve Circuit Conflict

Three law school faculty and students filed an amicus brief earlier this week urging the U.S. Supreme Court to reverse a trademark decision of the U.S. Court of Appeals for the Seventh Circuit regarding the legal standard for trademark confusion. The brief asks the Court to “end the contradiction and confusion” around the different approaches taken to the likelihood of confusion analysis by federal courts.

Fourth Circuit Finds No Transformative or Noncommercial Use of Ted Nugent Photo in Online Article

On February 6, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Philpot v. Independent Journal Review reversing a ruling that an online reproduction of a photograph of singer-songwriter Ted Nugent constituted fair use. The Fourth Circuit further found that professional photographer Larry Philpot was entitled to summary judgment on the validity of his copyright registration, vacating the Eastern District of Virginia’s determination that a genuine dispute of material fact existed as to the accuracy of Philpot’s registration application.

‘A Terrible Precedent to Set’: Newman Suspension Upheld on Appeal

The Judicial Conference of the United States’ Committee on Judicial Conduct (Conference) and Disability issued its decision today in Judge Pauline Newman’s appeal of the Judicial Council of the U.S. Court of Appeals’ (Council) September 2023 decision to suspend her from all cases. Federal Circuit Chief Judge Kimberly Moore first identified a complaint against Newman in April 2023. IPWatchdog was the first to break the news, and the court soon published a statement responding to media reports and making previously sealed documents public…. Today’s decision denied Newman’s petition for review of the Council’s decision, holding that the Council did not abuse its discretion in refusing to transfer the proceedings to a different circuit, that Newman has not shown good cause for her failure to cooperate, and that the sanction did not exceed the Judicial Council’s authority.

SCOTUS Grants Solicitor General’s Bid to Argue in Case About Retrospective Relief Under Copyright Act

The U.S. Supreme Court today granted a request by the U.S. Solicitor General to participate in oral argument as an amicus in Warner Chappell Music v. Nealy, which challenges a circuit court ruling that, under the discovery accrual rule, monetary damages for infringement under the Copyright Act are available for acts occurring outside of the Copyright Act’s three-year statute of limitations. The Solicitor General is urging the Supreme Court to affirm the lower ruling and uphold the Eleventh Circuit’s interpretation of the High Court’s ruling in Petrella v. Metro-Goldwyn-Mayer (2013) over competing interpretations in the Second Circuit.

Supreme Court Skips Case on Individual Liability for Willful Trademark Infringement

The U.S. Supreme Court today denied certiorari to Diamond J Wholesale, LLC, who petitioned the Court in December 2023 to clarify how individual liability for willful trademark infringement by a corporation should be assessed. The U.S. Court of Appeals for the Eleventh Circuit in August 2023 backed a Georgia district court’s finding that Diamond and its owner, Raj Solomon, willfully infringed trademarks owned by Top Tobacco, L.P., Republic Technologies (NA), LLC, and Republic Tobacco, L.P. (Top Tobacco) for cigarette rolling papers. The ruling upheld an $11 million verdict in favor of the tobacco companies.