Posts Tagged: "Copyright Litigation"

Supreme Court Emphasizes Objective Reasonableness for Fee Awards in Copyright Litigation

Justice Kagan stated as one primary factor that a District Court should put substantial weight on the reasonableness of the losing party’s position. The lower courts are in a good position to review and administer this factor, and it encourages parties with meritorious positions to advance them. Justice Kagan quite rightly stated that this was not the only factor, and that other previously articulated factors set forth in Fogerty also need to be evaluated. These include the “frivolousness [of the losing party’s position], [such party’s] motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.” Fogerty at 534, n.19.

Objective reasonableness important factor in awarding attorney’s fees in copyright litigation

In exercising this discretion the Supreme Court held that district courts should consider the objective reasonableness of the losing party’s position, but that the objective reasonableness was not the only factor, or even the predominant factor, for district courts to consider. Rather, the Supreme Court explained that district courts retain broad discretion to make an award even when the losing party advanced a reasonable claim or defense.

Recent Changes in Insurance Policy Forms Leaving Companies Exposed to Risk of Copyright Claims

There has been a recent trend by insurance companies to change their policy forms and use language that provides substantially less coverage for these kinds of claims. Buyers of insurance might still see that the policies they’re buying have “Advertising Injury” coverage that includes “copyright” claims. Nevertheless, these subtle changes to the actual language in the forms (which few policyholders ever actually read before buying their policy) eliminate most, if not all, of the benefits of the coverage. Careful companies buying insurance and concerned about the risk of copyright infringement lawsuits need to watch out for these two changes that could leave them exposed to costly lawsuits.

IP litigation report shows downward trends in patent, file sharing copyright and IPR cases

One aspect of the recent Lex Machina report that should jump out to anyone who has closely followed the patent litigation sector over the past few years is that the high percentage of all patent cases filed at the U.S. District Court for the Eastern District of Texas (E.D. Tex.) has dropped significantly. During 2015, E.D. Tex. received 43 percent of all patent infringement cases filed in American district courts. This dropped off steeply to 30 percent, or 291 cases filed, during 2016’s first quarter.

SCOTUS should adopt flexible, case-specific approach to attorneys’ fee awards in copyright cases

The IPO recently filed an amicus brief at the Supreme Court in Kirtsaeng v. John Wiley & Sons, Inc. supporting a flexible approach to awarding attorneys’ fees. Oral argument is currently scheduled for April 25, 2016. This case presents an important opportunity for the Supreme Court—consistent with its holding in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)—to resolve a circuit split regarding how to weigh equitable factors in awarding attorneys’ fees in copyright cases. Attorneys’ fees should be based on a review of all equitable factors and not a product of a formulaic approach that disproportionately weighs certain factors more than others.

2015 litigation trends highlight increased patent litigation, decreases in file sharing cases

2015 saw the second-most patent infringement cases brought to court, according to Lex Machina’s data. A total of 5,830 patent cases were filed, a 15 percent increase over the 5,070 patent cases which were filed during 2014. 2015 still trailed behind 2013 in terms of patent infringement cases; that year set the high-water mark for patent infringement cases with 6,114 cases filed in that year.

‘Happy Birthday To You’ Now In the Public Domain (Sort of)

For as long as I can remember, whenever we celebrated a birthday, we inevitably would gather around the birthday boy or girl and sing “Happy Birthday To You.” But now that the copyright is in question, new evidence brought to light that the song belonged in the public domain. Happy Birthday may very well be the oldest – and most widely recognizable – orphan work of all time. In 2013, a documentary filmmaker challenged the copyright on the world’s most popular song, calling Warner/Chappell Music’s claim to copyright royalties bogus. The filmmakers’ claim was no small declaration. By 1996, Warner/Chappell, who since 1988 has purported to own the rights to the song, was collecting over $2 million per year in licensing fees. The basis of Warner/Chappell’s claim is a copyright registration from 1935, made by the Summy Company, Warner/Chappell’s predecessor in interest.

To the Batmobile! Copyright Saves the Day in Gotham City

Mark Towle owns Gotham Garage, which manufactures and sells replicas of automobiles featured in famous motion pictures and television programs. Gotham Garage specifically sold fully constructed cars as well as kits which allow customers to modify their car to look like the Batmobile, and advertised its replicas as “Batmobiles” while marketing its business via the domain name batmobilereplicas.com. In May 2011, DC Comics filed suit against Towle for copyright infringement, trademark infringement and unfair competition arising out of Towle’s marketing and sale of Batmobile replicas. Towle countered that the Batmobile – at least as it appeared in the famous 1966 television series and the 1989 motion picture, the main inspirations for Gotham Garage’s designs – was not subject to copyright protection.

Dancing Baby Center of Test Case Over Bad DMCA Takedown Requests

In February 2007, Stephanie Lenz uploaded a 29-second video of her son dancing in her kitchen to the Prince song “Let’s Go Crazy” to YouTube. Universal Music Group, Prince’s publishing administrator responsible for enforcing his copyrights, objected to the otherwise-innocuous video, and sent YouTube a warning to remove the video, claiming that it constituted copyright infringement under the Digital Millennium Copyright Act (DMCA). Stephanie Lenz sued, arguing that Universal’s takedown request targeted permissible fair use, which generally permits the use of copyrighted material in limited conditions, such as when used in connection with criticism, parody, commentary or news reporting.

Brains, Blood, Sweat, and Tears: Derivative Works and the Walking Dead Licensing Controversy

Three-time Oscar nominee Frank Darabont (The Green Mile; The Shawshank Redemption) brought the The Walking Dead TV show to life. He wrote, directed, and produced the pilot episode, and served as the showrunner and executive producer (often-synonymous positions) for its smash-hit first season. It was surprising then, when AMC suddenly fired Darabont while Season 2 was in production, and after sending him to promote the series at Comic-Con. Darabont sued in New York State Court in December of 2013, and recently amended his complaint to include the lack of accreditation and profits allegedly owed him from AMC’s “companion series,” Fear the Walking Dead.

Jury Tells Robin Thicke to Give it Up

Thicke maintains that the Gaye family doesn’t own a genre, a style, or a groove and he’s right. The Gayes point out no other musicians or songs of the era were compared with “Blurred Lines,” and they’re right, too. A viable criticism of the verdict is that it could have a chilling effect on new music for fear of overzealous copyright owners attempting to expand this concept to their cases. Is it possible that a ruling of this nature would stifle creativity? Perhaps, but people were saying the same thing when the music sampling cases happened, and the industry adapted just fine.

How Sweet it is to be Sued by You (for copyright infringement)

Marvin Gaye enjoyed tremendous success during this decade and his song Got to Give it Up topped the charts in 1977. Fast forward nearly forty years to 2013, when the tremendously popular singer / songwriter, Robin Thicke recorded his number one hit, Blurred Lines. Got to Give it Up was recorded in 1976 and released in 1977, which means its copyright is governed by the 1909 Act. Now, under the 1909 Act, a work had to be published with notice or a deposit had to be made in the Copyright Office. Mere distribution of a song did not meet the publication requirement. Blurred Lines, however, is protected under the 1976 Act. A notable difference between the two statutes is that the 1976 Act gives automatic protection to any original work fixed in a tangible medium.

‘Happy Birthday to You’ Copyright Challenged in Class Action

[O]ne production company has decided to take this battle to the courts in the hopes of overturning what it feels are misappropriated copyright protections… The evidenced entered into the case by Good Morning To You Productions dates back to 1893, when a manuscript containing 73 songs was sold by sisters Mildred J. and Patty Smith Hill to publisher Clayton F. Summy. One of those songs was titled “Good Morning to All,” which contains the original melody for the song that became “Happy Birthday to You.” Within the year, Summy published Song Stories for the Kindergarten, which included “Good Morning to All,” and in October 1893, Summy obtained copyright protection as the proprietor, but not as the author, of the collection of songs.

Robin Thicke Sues Marvin Gaye Because He’s Infringing?

Recently I was driving around between appointments and flipping through radio stations on Sirius XM. I came across a song that at first I thought was the summer hit by Robin Thicke and Pharrell Williams – Blurred Lines. But that wasn’t the song at all, rather is was Marvin Gaye’s Got to Give it Up. I knew it would only be time before reading about some kind of settlement between Marvin Gaye’s family and Thicke/Williams, but Robin Thicke and Pharrell Williams suing the family of Marvin Gaye asserting that they are not infringing the copyright in Got to Give it Up would be hilarious if it weren’t so utterly ridiculous.

Dr. Phil Sues Gawker Media for Copyright Infringement

As briefly discussed above, Peteski brought this action against Deadspin because Deadspin copied the Dr. Phil show that had an exclusive interview with Ronaiah Tuiasosopo. Tuiasosopo is the brains (and voice) behind the hoax that was played on Notre Dame football player Manti Te’o. What was the hoax? A fake online girlfriend for the football player. On the first part of Dr. Phil’s two-part show, Tuiasosopo talked about how the hoax worked, and toward the end of the show, Dr. Phil asked Tuiasosopo to demonstrate the telephone voice that he used. Tuiasosopo acted like he didn’t want to do it; so the end of that first episode was “the cliffhanger”–can Dr. Phil get Tuiasosopo to “do the voice” on the next episode?