Tag Archives: copyright

Website Advertisements and Copyright Fair Use

Photo of Cory BarnesBy Cory Barnes on Posted in Copyright
For attorneys frequently engaged in copyright infringement litigation, drilling down into the specifics of the four fair use defense factors set forth in 17 U.S.C. § 107 is common practice. While the details of any particular case will imbue certain factors with more importance than others, more often than not, copyright plaintiffs are quick to … Continue Reading

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

Photo of Jacqueline LesserBy Jacqueline Lesser on 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

‘No One Can Own the Law’: Supreme Court Holds Annotations to State Statutes Are Not Protected by Copyright

Photo of Christina MoserPhoto of Lesley GrossbergBy Christina Moser and Lesley Grossberg on Posted in Copyright, Copyright Infringement, Federal Circuit
The Supreme Court issued a 5-4 decision on April 27, 2020, in Georgia v. Public.Resource.Org, upholding the Eleventh Circuit’s ruling that the Official Code of Georgia Annotated (OCGA) is not entitled to copyright protection. The majority’s decision found that the OCGA falls under the “government edicts” doctrine: “government officials empowered to speak with the force … Continue Reading

All’s Fair in Love and War . . . So What About Fair Use in the Time of Coronavirus?

Photo of Aaron RabinowitzBy Aaron Rabinowitz on Posted in Copyright
In response to the COVID-19 pandemic, schools, colleges, universities, libraries and other institutions have closed and migrated their in-person classes and other offerings to an online model. But with the rapid migration of physical content to online platforms, questions have arisen regarding the application of copyright law to books and other texts that now are … Continue Reading

U.S. Supreme Court Rules That Sovereign Immunity Shields States From Copyright Suits

Photo of Lisa Bollinger GehmanBy Lisa Bollinger Gehman on Posted in Copyright
On March 23, the U.S. Supreme Court issued its first of three anticipated copyright decisions for this term – Allen v. Cooper – in which the Court unanimously held that states are shielded from copyright suits by sovereign immunity. Thus, the plaintiff filmmaker did not prevail in his copyright infringement suit against the state of … Continue Reading

UGC Uncertainty Consternation Continues

By 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

Photo of 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

Photo of 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

H.R. 1695 Introduces Major Reforms to the U.S. Copyright Office

By Dominic Gentile on Posted in Copyright
A bill was formally introduced in Congress on March 23, 2017, that would, in effect, remove the Copyright Office from the oversight of the Librarian of Congress. Introduced by House Judiciary Chairman Bob Goodlatte of Virginia and Ranking Member John Conyers of Michigan, H.R. 1695 seeks to amend 17 U.S.C. § 701 and change the … Continue Reading

Does Copyright Now Cover Functionality?

Photo of 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

Photo of 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

Photo of 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

Photo of 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

Photo of 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

Photo of 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

Photo of C. Dennis LoomisPhoto of Kevin 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
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