Robert Welsh

Spanski Enterprises, Inc. v. Telewizja Polska, S.A.: How Far Is Too Far When It Comes to the Extraterritorial Reach of US Copyright Law?

By Robert Welsh on October 19, 2017 Posted in Copyright Infringement

As a general matter, acts of copyright infringement that occur outside the jurisdiction of the United States are not actionable under U.S. copyright law. “The Copyright Act, it has been observed time and again, does not apply extraterritorially.” Kirstaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351, 1376 (2013) (Ginsburg, J. dissenting). The general … Continue Reading

Determining Fair Use Under the Copyright Act: Judge Versus Jury

By Robert Welsh on June 23, 2017 Posted in Copyright, Copyright Act

When the Supreme Court ruled in 1998 that copyright infringement lawsuits were subject to the Seventh Amendment’s right to jury trial, the natural consequence of that ruling was that fair use would likewise become a jury issue. However, at the time Congress enacted the Copyright Act’s fair use provision, 17 U.S.C. § 107, copyright infringement … Continue Reading

Impression Products, Inc. v. Lexmark International, Inc. – Setting the Common Law’s Limits on the Rights of Patent and Copyright Owners

By Robert Welsh on June 5, 2017 Posted in Copyright, Patent

Last week, in Impression Products, Inc. v. Lexmark International, Inc., Case No. 15-1189 (May 30, 2017), the Supreme Court ruled that under the “exhaustion doctrine,” patent owners cannot use patent law to impose restrictions on the downstream sales or transfers of lawfully purchased patented goods. The decision took many patent practitioners by surprise. Not … Continue Reading

Does Copyright Now Cover Functionality?

By Robert Welsh and Chad Rutkowski on March 24, 2017 Posted in Copyright

On March 22, 2017, the U.S. Supreme Court decided the case of Star Athletica, L.L.C. v. Varsity Brands, Inc. regarding the scope of copyright protection for “pictorial, graphic or sculptural features” that have been added to useful articles—in this case, cheerleading uniforms. The case has mostly gained attention because its facts crystalize the tension between … Continue Reading

Is This the Beginning of the End of Flo & Eddie’s Quest to Establish a Public Performance Right under State Copyright Law?

By Robert Welsh on February 24, 2017 Posted in Copyright

Former recording artists Flo & Eddie’s three-and-a-half-year battle against Sirius XM Radio, Inc., for recognition of a public performance right under New York law for pre-1972 sound recordings has come to an end. On Feb. 16, 2017, the Second Circuit Court of Appeal issued an order directing the district court to grant Sirius XM Radio’s … Continue Reading

Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: The New York Court of Appeals Conducts an Inquiry Into the Past and the Future of State Copyright Law

By Robert Welsh on December 29, 2016 Posted in Copyright

Sirius XM Radio received an early present for the holidays: On Dec. 20, the New York Court of Appeals issued an opinion addressing a question certified by the U.S. 2d Circuit Court of Appeals regarding whether “there is a right of public performance for creators of sound recordings under New York law and, if so, … Continue Reading

Oracle v. Google: Are Juries Equipped To Decide Fair Use?

By Robert Welsh on June 15, 2016 Posted in Copyright, Copyright Infringement, Fair Use

If you’re in the high-tech industry and are sued for copyright infringement, there are two words you need to remember (in addition to the phone number of your attorney, of course). Those two words are “fair use.” This week, we were once again reminded of the increasing willingness of courts – and now juries – … Continue Reading

Is Paramount Going Where No Copyright Holder Has Gone Before?

By Robert Welsh on May 12, 2016 Posted in Copyright

Hollywood is often referred to as the land of make-believe. A federal lawsuit working its way through a Los Angeles federal court may decide the extent to which what Hollywood “dreams up” for its motion pictures and television shows is entitled to copyright protection. The case is Paramount Pictures Corp. v. Axanar Productions Inc., et … Continue Reading

How Will the Supreme Court Function With the Varsity Brands Test?

By Chad Rutkowski and Robert Welsh on May 6, 2016 Posted in Copyright, Copyright Act, Copyright Protection

On Monday, the Supreme Court announced it had agreed to review the Sixth Circuit’s copyright decision in Star Athletica v. Varsity Brands, which involves the issue of whether certain designs appearing on cheerleading uniforms are copyrightable or are instead non-copyrightable functional elements that are an inherent part of cheerleading uniform designs. In a split decision, … Continue Reading

Fox News LLC v. TVEyes, Inc.—Does the Courts’ Expansion of Fair Use Copyright Protection Promote the “Progress of Science and useful Arts” When It Requires Increasing Judicial Oversight Over Activities That Otherwise Would Be Regulated By the Marketplace?

By Robert Welsh on November 18, 2015 Posted in Copyright, Digital Millennium Copyright Act (DMCA), Fair Use

In 2014, when District Court Judge Alvin Hellerstein of the Southern District of New York upheld TVEyes, Inc.’s (“TVEyes”) monitoring service as “fair use” in the face of a copyright infringement claim brought by Fox New Network LLC (“Fox News”),[1] the decision was seen as yet another step in the federal courts’ limitations of the … Continue Reading

Fox News LLC v. TVEyes, Inc.—Does the Courts’ Expansion of Fair Use Copyright Protection Promote the “Progress of Science and useful Arts” When It Requires Increasing Judicial Oversight Over Activities That Otherwise Would Be Regulated By the Marketplace?

By Robert Welsh on November 18, 2015 Posted in Uncategorized

Another Step in the Long March from Campbell v. Acuff-Rose toward Fair Use Free-for-All?

By Lesley Grossberg and Robert Welsh on October 21, 2014 Posted in Copyright

Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014) TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or phrases to determine and review an aggregation of instances … Continue Reading

Another Step in the Long March from Campbell v. Acuff-Rose toward Fair Use Free-for-All?

By Lesley Grossberg and Robert Welsh on October 21, 2014 Posted in Copyright, Copyright Infringement

Apparel Designs and the “Metaphysics” of Copyright Protection

By Robert Welsh on October 15, 2014 Posted in Copyright, Copyright Act, Copyright Infringement

Varsity Brands, Inc. v. Star Athlectica, LLC, 110 U.S.P.Q.2d 1150 (W.D. Tenn. 2014) Metaphysics is usually thought to be the province of philosophers or theologians. A recent decision by a U.S. District Court in Tennessee, Varsity Brands, Inc. v. Star Athletica, LLC, 110 U.S.P.Q.2d 1150 (W.D. Tenn. 2014), reminds us that copyright law can also … Continue Reading

Apparel Designs and the “Metaphysics” of Copyright Protection