Posts Tagged: "Copyright Act"

Second Circuit Delivers Blow for Fair Use in Warhol’s Prince Photograph Case

On March 26, the U.S. Court of Appeals for the Second Circuit reversed The United States District Court for the Southern District of New York’s decision that Andy Warhol’s Prince Series constituted fair use of Lynn Goldsmith’s photograph, holding that “the district court erred in its assessment and application of the fair-use factors and the works in question do not qualify as fair use.” The Court of Appeals further concluded that the Prince Series works were substantially similar to the Goldsmith Photograph “as a matter of law.” In 1981, Defendant-Appellant Lynn Goldsmith (Goldsmith) took several photographs of the then up-and-coming musical artist Prince Rogers Nelson (Prince). In 1984, Goldsmith’s agency, Defendant-Appellant Lynn Goldsmith, Ltd. (LGL) licensed one of the photographs from the 1981 photoshoot to Vanity Fair magazine “for use as an artist reference.” Unbeknownst to Goldsmith and LGL, the artist who used her photo as inspiration was Andy Warhol, and not only did he use her photo for inspiration for the image Vanity Fair commissioned, but he continued to create an additional 15 works, which are known as the “Prince Series.”

Skidmore Seeks a Second Chance at SCOTUS in Led Zeppelin Copyright Case

On October 30, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, filed a petition for rehearing of the denial of its August 6 petition for writ of certiorari to the Supreme Court. In the original petition, Skidmore requested that the Supreme Court review a March judgment of the U.S. Court of Appeals for the Ninth Circuit siding with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,” written by Robert Wolfe of the band Spirit, a contemporary of Led Zeppelin. Skidmore brought the original suit in 2014. In the petition for rehearing, Skidmore claims that the “Ninth Circuit’s en banc opinion herald[ed] the ‘death of music copyright,’ just as happened to literary copyright before it.”

Other Barks & Bites, Friday June 21: China Releases National IP Strategy, Iancu Discusses Patent Eligibility, and Rubio Amendment Would Prevent Huawei Patent Suits

This week in Other Barks & Bites: Senators Tillis and Coons ask federal agencies to step up enforcement against IP theft; Senator Stabenow and Congressman Cummings ask GAO to review government’s drug patent authority; USPTO Director Iancu says that Congress will have to fix patent eligibility problems; China releases a new national IP strategy after the U.S. halts IP theft proceedings at the WTO; Adidas loses European trademark for three-stripe logo; VidAngel ordered to pay more than $60 million over copyright infringement; music lyric site Genius accuses Google of ripping content for its own platform; and Apple asks the United States Trade Representative to rescind tariffs that would affect consumer tech goods.

Not Here to Start Trouble: Court Rules Documentary’s Use of Super Bowl Shuffle Was Fair Use

The Eighties are in! A contagious wave of nostalgia has infected popular culture with period TV series, from shows like Stranger Things to rebirths and reboots of the era’s shows and movies. This retro cultural appropriation was bound to involve a copyright issue. Indeed, a dispute arose over a documentary on the 1985 Chicago Bears, which made an unauthorized use of the team’s landmark music video, The Superbowl Shuffle. The Shuffle’s owners claimed an infringement on the licensing market for the work. The documentarians claimed fair use. The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled for the documentarians, granting them summary judgment, in Red Label Music Publishing v. Chila Productions.

Rimini Street v. Oracle USA: Kavanaugh Frowns on Broad Interpretation of ‘Full Costs’ Under Copyright Act

On Monday, March 4, Justice Brett Kavanaugh issued the decision for a unanimous Supreme Court in Rimini Street, Inc. v. Oracle USA, Inc., which asked whether the meaning of “full costs” under 17 U.S.C. § 505 of the U.S. Copyright Act extends to damages outside of the six categories of costs that U.S. district courts can award against a losing party as outlined in 28 U.S.C. § 1821 and 28 U.S.C. § 1920. In siding with petitioner Rimini Street, the Supreme Court held that “full costs” in the copyright litigation context are limited to Sections 1821 and 1920, reversing the Court of Appeals for the Ninth Circuit’s decision to award $12.8 million to Oracle covering litigation expenses outside of the statutory schedule of costs.

Why it May Be Time to Provide Criminal Remedies for Patent Infringement

Under normal circumstances, infringement and misappropriation of the intellectual property (IP) rights of others are subject to civil liability under U.S. federal (and some states’) law; the remedies for those whose rights have been violated typically include money damages or some form of equitable relief, such as an injunction. However, sometimes the conduct of offenders is so egregious and the remedies so inadequate that pursuit of a private cause of action is insufficient to make IP owners whole. To make matters worse, civil remedies do little to deter further infringement or misappropriation on the part of individuals and entities with more than enough money to game the system. Known as efficient infringers, according to some IP practitioners, they have mastered the business practice of paying out as little in damages as possible and refusing to negotiate licenses with IP owners, all the while bullying IP owners into spending their much smaller fortunes in order to defend their IP rights or to forfeit them—the end result sometimes being the invalidation or cancellation of their IP. Accordingly, lawmakers have enacted legislation with the goal of creating true deterrents against infringement and misappropriation by imposing criminal sanctions on a narrow set of conditions associated with infringement and misappropriation. However, the law does not criminally punish infringement of a particular type of IP: patents.

Supreme Court Mulls Circuit Split on When a Copyright is Registered in Fourth Estate v. Wall-Street.com

On January 8th, the Supreme Court heard oral arguments in Fourth Estate Public Benefit Corporation v. Wall-Street.com [Case No. 17-571 (Jan. 8, 2019)] to settle a longstanding circuit split on the copyright registration prerequisite to a copyright infringement suit… The Justices gave little indication as to how convincing they found either party’s policy arguments. The first rule of statutory interpretation, however, is that if the plain meaning of the text is clear, the inquiry ends. Here, at least two of the Justices acknowledged that the term “registration” is flexible, so the issue may end up turning on how far outside the four corners of Section 411(a) the Court is willing to look to determine its meaning.

Musically Inclined: The Music Modernization Act of 2018

When Congress permitted sound recordings to be copyrighted over four decades ago, it didn’t extend that coverage to pre-1972 recordings. This issue, and the piecemeal nature of licensing for digital music on a per-work, per song basis, were part of the impetus for the stakeholders in the music industry to work together to create the Music Modernization Act, signed into law on October 11, 2018… Not all issues in the music industry were solved by the Music Modernization Act: licensing of physical sound recordings (vinyl and CDs) will still occur on a per-work, per song basis. Terrestrial radio pays songwriters and publishers royalties for playing music, but it doesn’t pay performance or sound-recording royalties. And while the goal of one public database is laudable, the responsibility still lies with songwriters and publishers to submit copyright applications and to submit all of their musical works and sound recordings to the MLC… While there is still work to be done, the Music Modernization Act does solve some long-standing issues in the music industry.

Copyrights: Intellectual Property Considerations for Start-Ups

Copyrights protect original works of authorship.  This gives a copyright holder exclusive rights to modify, distribute, perform, display, and copy the work. However, as with other forms of intellectual property, there are important things copyright holders need to know in order to best protect and utilize their copyrights. You do not need to register a work to be protected by copyright.  However, registration is encouraged as it provides enhanced protection for copyright holders.  For example, a registered copyright is considered prima facie evidence in litigation, meaning the court will accept, on face value, that the copyright is valid unless it can be proven otherwise. 

Trademark Enforcement: A More nuanced game than whack-a-mole

A successful advertising campaign promotes goodwill and brand identity, spurring sales, revenue, and profit.  But success begets imitation.  All too often, imitators attempt to hijack a brand and, with it, all the blood, sweat, tears, and money invested in it. While there are some similarities, the unfortunate reality is trademark enforcement is more nuanced than a game of whack-a-mole.  Not every “mole” is worth whacking, some that are whacked may not respond favorably, and sometimes the mallet just is not strong enough to play. So, what should a trademark owner consider when determining whether to take enforcement action?  The first step is to identify the scope and strength of the trademark.  Next, it is important to determine whether enforcement will obtain the desired results.  Lastly, the impact of inaction should be examined.

Western Tennessee Judge Denies Spotify’s Motions to Dismiss Copyright Infringement Claims Brought by Bluewater Music

U.S. District Judge Jon McCalla of the Western District of Tennessee recently issued an order denying motions made by interactive streaming music provider Spotify to dismiss a case including copyright infringement claims brought by independent music publisher and copyright administration company Bluewater Music Corporation. Judge McCalla’s order determined Bluewater has standing for all 2,142 music compositions it has asserted based on ownership or an exclusive license of the works. Given Bluewater is seeking the maximum statutory damages of $150,000 per infringed work, Judge McCalla’s order allows Bluewater to continue pursuing a maximum damages award of $321.3 million.

Supreme Court to Hear Rimini Street v. Oracle to Decide if Copyright Act Authorizes Non-Taxable Costs

The U.S. Supreme Court has granted a petition for writ of certiorari to take up Rimini Street v. Oracle on appeal from the Court of Appeals for the Ninth Circuit. The case will ask the nation’s highest court to solve a split among the Circuit Courts of appeal by determining whether the Copyright Act’s allowance of full costs to a prevailing party under 17 U.S.C. § 505 is limited to taxable costs under 28 U.S.C. § 1920 and 28 U.S.C. § 1821, as has been held in the Eighth and Eleventh Circuits, or whether the Copyright Act also authorizes non-taxable costs as the Ninth Circuit held in its ruling of this case.

Ninth Circuit finds no Copyright Infringement by Owner of Infringing IP Address

On appeal, the Ninth Circuit panel found that the district court had properly dismissed both the direct and the contributory infringement claims with prejudice. Although Cobbler Nevada had established a connection between Gonzales and the offending IP address, establishing a claim of copyright infringement required the plaintiff to show that the defendant himself violated the plaintiff’s exclusive rights under the Copyright Act. Citing to the Supreme Court’s standards for pleading under Iqbal/Twombly, the Ninth Circuit determined that this claim involved a situation where the facts pled by the plaintiff stopped short of the line “between possibility and plausibility of entitlement to belief.”

US Supreme Court Tackles Copyright Registration Circuit Split

Some circuit courts have held that a work is “registered” and the copyright owner can sue an infringer as soon as the applicant files the application, deposits a copy of the work and pays a fee.  This is known as the “application” approach.  Other circuit courts follow the “registration” approach which requires the Copyright Office to act on the application—by examining it and either approving or refusing it—before the copyright owner may file suit. So, which approach is correct? We should soon have an answer as the United States Supreme Court has agreed to hear Fourth Estate Public Benefit Corporation v Wall-Street.com, LLC to resolve this issue and finally decide what it means to be “registered.”

Supreme Court to Resolve Copyright Registration Circuit Split

On Thursday, June 28, the U.S. Supreme Court agreed to hear a case that should resolve the long-standing question of whether a copyright plaintiff must have a registration in hand when filing suit or, instead, can merely have an application pending. The case is Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, 17-571… The Solicitor General filed a brief in favor of the court taking the case. That brief urges the high court to adopt the “registration” approach based on the plain language of the statute.