Archives: Copyright Act

A Pattern of Deceit? SCOTUS to Consider Whether Section 411(b) of the Copyright Act Imposes a Mental State Requirement Akin to Fraud

By Jacqueline Lesser on June 3, 2021 Posted in Copyright Act

On June 1, 2021, the Supreme Court granted certiorari on the question of whether Section 411(b) of the Copyright Act is intended to be a “fraud” statute that requires scienter for cancellation of a copyright registration. See Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20-915. In 2008, Congress amended the Copyright Act to … Continue Reading

Supreme Court Clarifies Meaning of ‘Full Costs’ in Section 505 of Copyright Act

By Christina Moser and Cory Barnes on March 29, 2019 Posted in Copyright, Copyright Act

In Rimini Street, Inc. v. Oracle USA, Inc.,[1] a unanimous Supreme Court recently held that 17 U.S.C. § 505’s award of “full costs” is limited to the specific categories of costs defined in 28 U.S.C. §§ 1821 and 1920, which exclude expert witness fees, e-discovery expenses and jury consultant fees. “A statute awarding ‘costs’ will … 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

The Making Available Right Gets Transmitted to the U.S.

By Chad Rutkowski on December 15, 2016 Posted in Copyright Act

In what appears to be the first instance of an express recognition of a “making available” right under the U.S. Copyright Act, a D.C. district court in Spanski Enters. v. Telewizja Polska S.A., Civ. Action No. 12-cv-957 (TSC), 2016 U.S. Dist. LEXIS 166506 (D.D.C. Dec. 2, 2016) found a foreign defendant liable for copyright infringement … Continue Reading

Not Dat Function, Dis Function

By Chad Rutkowski on October 5, 2016 Posted in Copyright, Copyright Act, Patents

When we talk these days about the role of functionality in determining the copyrightability of a useful article, we are generally talking about the 10 different separability tests currently duking it out at the Supreme Court in the Varsity Brands case. Our posts on that case are here, here and here. These tests enforce … 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

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