Tag Archives: copyright

UGC Uncertainty Consternation Continues

Alan L. FrielBy Alan L. Friel on Posted in Advertising
Amended 9th Circuit Decision Does Not Clarify the Extent to Which Service Providers Can Manually Screen for Inappropriate User Content In April 2017, the 9th Circuit Court of Appeals startled online service providers that allow users to post content (known as UGC, or user-generated content), by holding that the use of moderators to screen out … Continue Reading

Determining Fair Use Under the Copyright Act: Judge Versus Jury

By Robert Welsh on 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

Started From the Bottom, Now We’re Real: Drake’s Use of Jimmy Smith’s Commentary on ‘Real Music’ Considered Fair Use

Lauren AttardBy Lauren Attard on Posted in Copyright, Music Industry
On May 30, 2017, Judge William H. Pauley III, in the Southern District of New York, ruled that rapper-singer-songwriter Drake was permitted to use a sample of jazz artist Jimmy Smith based on the fair use doctrine, even though Drake and his record label did not license the publishing rights to the song. The court … 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 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

You Might Want to Turn Down for That: Lil Jon and DJ Snake Sued for Copyright Infringement

Lauren AttardBy Lauren Attard on Posted in Copyright, Music Industry
On May 4, 2017, Golden Crown Publishing, LLC, the publishing company behind Freddie GZ’s song Turn Down for What, sued Lil Jon and DJ Snake in the Southern District of New York, alleging that their hit song by the same name infringes on Golden Crown’s copyright. The plaintiff is seeking monetary damages and a permanent … Continue Reading

Does Copyright Now Cover Functionality?

Chad RutkowskiBy Robert Welsh and Chad Rutkowski on 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 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

Is There Copyright Infringement in Whoville?

By Peter Shapiro on Posted in Copyright, Copyright Infringement
The name “Cindy-Lou Who” likely invokes thoughts of the holiday season and Dr. Seuss’s beloved How the Grinch Stole Christmas (“Grinch”), which reminds us that the holidays are not all about toys and trinkets. But what happened after the Grinch “carved the roast beast”? Matthew Lombardo’s play Who’s Holiday! (the “Play”) tells us that story … Continue Reading

Sir Paul Will Not Let It Be: McCartney Makes Preemptive Strike Against Music Publishers to Reclaim His Copyrights

Tatiana MarkelBy Tatiana Markel on Posted in Copyright, Music Industry
On Dec. 20, 2016, we wrote about a decision out of England’s High Court of Justice finding that members of music group Duran Duran breached their agreements with a music publisher by filing notices to terminate assignments of copyrights in 37 of their songs under section 203 of the Copyright Act.  That decision shocked much … 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 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

Something’s phishy here … Addressing internet scams through intellectual property strategy

Deborah A. WilcoxBy Shannon McCue and Deborah A. Wilcox on Posted in Copyright, Cybercrime
This time of year, people often seek extra work opportunities to make some spare cash. Job applicants flock to websites to find employment. This also attracts scam artists who impersonate legitimate companies to hook victims. While a variety of phishing schemes use imitation to provide a look of legitimacy to the scam, one of the … Continue Reading

DOJ Appeals Decision Affecting Music Licensing

Lauren AttardBy Lauren Attard on Posted in Copyright
Lost in the news of the election, on Nov. 11, the Department of Justice (DOJ) filed a notice of appeal from an adverse decision issued by Judge Louis Stanton, who rejected a DOJ interpretation that licensees applauded and ASCAP, BMI, songwriters and publishers opposed. ASCAP and BMI collect and distribute payments to their members – … Continue Reading

Is hyperlinking copyright infringement? EU vs. US

By Maryanne Stanganelli on Posted in Copyright, Copyright Infringement
Over in Europe, the Court of Justice of the European Union (CJEU) has been hyperactive in the area of hyperlinking and copyright, at least as compared with the United States. The CJEU issued a much-anticipated ruling in September concerning hyperlinking’s legality in GS Media v Sanoma Media Netherlands and Others (C-160/15). It held that posting … Continue Reading

Not Dat Function, Dis Function

Chad RutkowskiBy Chad Rutkowski on 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

A Circuit Split at Last: Ninth Circuit Recognizes De Minimis Exception to Copyright Infringement of Sound Recordings

Lesley GrossbergBy Lesley Grossberg on Posted in Copyright Infringement
For the past 10 years, the Sixth Circuit Court of Appeals has stood alone in having addressed the issue of whether a de minimis amount of copying used in a song sample constitutes infringement of a copyrighted sound recording. While the Sixth Circuit’s admonition of “get a license or do not sample” has gained little … Continue Reading

Supreme Court Clarifies Test for Fee-Shifting in Copyright Cases

C. Dennis LoomisKevin BovardBy C. Dennis Loomis and Kevin Bovard on Posted in Copyright
The Supreme Court on June 16 issued a unanimous ruling clarifying the test for awarding attorneys’ fees to successful copyright litigants.  The decision, in Kirtsaeng v. John Wiley & Sons, Inc., is sure to have lasting impact on how both plaintiffs and defendants weigh the risk of litigating a copyright case to completion. BACKGROUND The … Continue Reading

Supreme Court Clarifies Test for Fee-Shifting in Copyright Cases

Kevin BovardC. Dennis LoomisBy Kevin Bovard and C. Dennis Loomis on Posted in Copyright
The Supreme Court on June 16 issued a unanimous ruling clarifying the test for awarding attorneys’ fees to successful copyright litigants.  The decision, in Kirtsaeng v. John Wiley & Sons, Inc., is sure to have lasting impact on how both plaintiffs and defendants weigh the risk of litigating a copyright case to completion. BACKGROUND The … Continue Reading

Is Paramount Going Where No Copyright Holder Has Gone Before?

By Robert Welsh on 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?

Chad RutkowskiBy Chad Rutkowski and Robert Welsh on 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

Central District of California Holds That the California Resale Royalty Act Is Preempted by Federal Copyright Law

Eric HiattBy Eric Hiatt on Posted in Art Law, Copyright
As previously discussed on this blog, the validity of the California Resale Royalty Act (the “RRA,” Civil Code Section 986), a 1976 law that requires resellers of fine art to pay a royalty of 5 percent to the artists behind the works, was challenged in a dispute between a group of artists and Christie’s Inc., … Continue Reading
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