Category Archives: Copyrights

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Queen Anne’s Revenge?

In June 2019, the United States Supreme Court granted certiorari in Allen v. Cooper, No. 18-877.  The case presents a question “whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act … in providing remedies for authors of original expression whose federal copyrights are infringed by States.”  Plaintiffs filed their Opening Brief in August 2019.… Continue Reading

Supreme Court to Rule on Copyright Protection of State Annotated Legal Codes

On June 24, 2019, the U.S. Supreme Court granted certiorari to decide whether states can claim copyright protection in annotated codes. State of Georgia v. Public.Resource.Org, Inc., No. 18-1150. Annotated codes, in addition to the text of the statute, include summaries of judicial opinions, regulations, and attorney general opinions related to the statute. Georgia, like many states, offers a … Continue Reading

Copyright Doubleheader At The Supreme Court

The Supreme Court unanimously decided two Copyright Act cases on March 4, 2019.

  • In Rimini Street, Inc. v. Oracle USA, Inc., the Court held that the provision in the Copyright Act that gives federal district courts discretion to award “full costs” to a party in copyright litigation, 17 U. S. C. §505, covers only the six categories specified in
Continue Reading

Application or Registration? Eleventh Circuit Widens Circuit Split

The Eleventh Circuit has widened the circuit split on whether a copyright application or completed registration is required before filing a copyright infringement lawsuit. In Fourth Estate Public Benefit v. Wall-Street.com, the Eleventh Circuit held that a pending application to the Copyright Office is not sufficient. As a result, the Eleventh Circuit affirmed the Southern District of Florida’s dismissal … Continue Reading

Supreme Court Affirms That Designs Of Cheerleading Uniforms Are Copyrightable

As we previously blogged, the Sixth Circuit held in 2015, that the colors, stripes, chevrons, and similar graphic designs of the plaintiff’s cheerleading uniforms “are copyrightable pictorial, graphic, or sculptural works” and are “not uncopyrightable useful articles.” The Supreme Court, in Star Athletica, LLC v. Varsity Brands, Inc., Doc. No. 15-866, affirmed, 6-2, in an opinion by Justice … Continue Reading

The Yellow Pages Live On

Calling the district court’s action an “abuse of discretion,” the 11th Circuit reversed a decision that cut by more than 90 percent a successful copyright infringement plaintiff’s request for attorney’s fees and costs. Yellow Pages Photos, Inc. v. Ziplocal, L.P., No. 16-11868 (January 24, 2017). This is the latest decision issued in the long-running dispute between Yellow Pages Photos, … Continue Reading

NY Common Law Does Not Provide Creators With Control Over Public Performances of Pre-1972 Sound Recordings

On December 20, 2016, the New York Court of Appeals (New York’s highest court) issued a landmark state copyright law decision, holding in response to a certified question from the Second Circuit in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., that New York law does not recognize a right of public performance for creators of sound recordings … Continue Reading

BMI Redux: BMI Seeks To Move To “Clarify” The DOJ Position On Partial Licenses

As we have previously blogged, the Department of Justice (“DOJ”) rejected proposed modifications to the existing Broadcast Music, Inc. (“BMI”) and American Society of Composers, Authors and Publishers (“ASCAP”) consent decrees. Nor did the DOJ purport to change any of the existing interpretations of the decrees.

As we predicted, BMI and ASCAP are challenging the DOJ action. … Continue Reading

DOJ Rejects Modifications of ASCAP, BMI Consent Decrees

On August 4, 2016, the Department of Justice (“DOJ”) rejected changes to the 1941 consent decrees with ASCAP and BMI. These decrees have been in place since 1941, when the DOJ settled antitrust claims with ASCAP and BMI relating to joint licensing of competing songs. The American Society of Composers, Authors and Publishers (“ASCAP”) and Broadcast Music, Inc. (“BMI”) are … Continue Reading

Second Circuit Revives Copyright Claims Against Sony and Ghostface Killah

In Urbont v. Sony Music Entertainment Inc., 15-1778, the Second Circuit recently revived claims against Sony and Ghostface Killah, holding that although third parties may raise a work for hire defense, here there were factual issues that precluded summary judgment. The Court affirmed, however, summary judgment on plaintiff’s state law claims as preempted by the Copyright Act.… Continue Reading

Second Circuit In Vimeo Narrows The Red Flag Knowledge and Willful Blindness Exceptions To DMCA Safe Harbors

The Second Circuit recently decided Capitol Records, LLC, et al. v. Vimeo, LLC (2d Cir. June 16, 2016) (“Vimeo”), a landmark decision concerning the interpretation of the Digital Millennium Copyright Act of 1998 (the “DMCA”).  The DMCA gives qualifying internet service providers a safe harbor (protection) from copyright liability with respect to user-posted material.  In this case, Plaintiffs, … Continue Reading

The Importance of Being Earnest and Objectively Reasonable

Kirtsaeng v. John Wiley & Sons, Inc. continues to make controlling copyright law, visiting the U.S. Supreme Court for the second time on an issue of great importance to copyright owners and litigants. This time, the issued raised for consideration was whether the lower court properly exercised its discretion in denying a $2 million fee application by Kirtsaeng who had … Continue Reading

Ninth Circuit “Strikes A Pose” For Madonna And Music Sampling In “Vogue” Copyright Dispute

In a copyright decision that rocks the music industry and splits from the Sixth Circuit, the Ninth Circuit recently held that Madonna’s mega-hit “Vogue” did not violate copyright rights by sampling a 0.23-second horns segment of the 1980’s song  “Love Break.” In VMG Salsoul v. Ciccone, the divided appellate court affirmed the Central District of California’s ruling that “de … Continue Reading

First Sale Defense Blocks “Slam Dunk” Copyright Violation

The Ninth Circuit recently addressed the burden of proof applicable to the first sale defense to a copyright infringement claim. That defense provides that, once a copy of a work is lawfully sold or transferred, the new owner has the right to sell or otherwise dispose of that copy without the copyright owner’s permission. In Adobe Systems, Inc. v. ChristensonContinue Reading

Santa Claus Will Leave The Building In 2016 — Author’s Heirs Prevail Over EMI

In Baldwin, et al. v. EMI Feist Catalog, Inc., the Second Circuit Court of Appeals was tasked with determining when and how the rights to the song “Santa Claus is Comin’ to Town” (the “Song”) would properly terminate.  The heirs to one of the Song’s co-authors challenged the assertions of the copyright holder, EMI Feist Catalog, Inc. (“EMI”).  Relying … Continue Reading

Parody Writers Take Note: Fair Use Parody + New Elements = Copyright Protection

On October 30, 2015 the Second Circuit held that an unauthorized parody that makes “fair use” of its source material is eligible for copyright protection and that copyright protection may extend to a work that exhibits the sufficient minimal degree of originality in selecting, coordinating, and arranging otherwise un-protectable underlying elements.… Continue Reading

Original Policeman in the Village People Gets His Copyrights Back, and $500,000 in Attorneys’ Fees

On September 15, 2015, the Southern District of California awarded over $500,000 in attorney’s fees to a songwriter who successfully prevailed on his right to terminate grants of copyright under 17 U.S.C. § 203 because awarding fees would encourage authors to assert their rights to regain their copyright interests.  Victor Willis (“Willis”) is a songwriter and an original member of … Continue Reading

Ninth Circuit Says “Let’s Goes Crazy” On Fair Use of Prince Song In YouTube Video

In Lenz v. Universal Music Corp. et al, the Ninth Circuit held that the Digital Millennium Copyright Act (the “DMCA”) requires copyright holders to consider fair use before sending a takedown notice and that the failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was … Continue Reading

Copyright Fair Use: 1 Win, 1 Maybe and Two Losses for TVEyes

On August 25, 2015, the Southern District of New York held that the archiving function of a media monitoring service was protected by fair use and that the e-mailing feature could qualify for fair use if certain protective measures were implemented, but that the downloading and “date-time” search functions were not.  Defendant TVEyes, Inc. (“TVEyes”) is a media-monitoring service that … Continue Reading

“BRING IT ON!”: Sixth Circuit OKs Copyright Claims for Cheerleader Uniform’s Design

On August 19, 2015, the Sixth Circuit Court of Appeals issued a “V-I-C-T-O-R-Y” for the world’s largest designer and manufacturer of cheerleader uniforms in its copyright infringement lawsuit against another cheerleading gear company. In a 2-1 decision, in Varsity Brands, Inc. v. Star Athletica, LLC, the appellate court held that the colors, stripes, chevrons, and similar graphic designs of the … Continue Reading

The Ray Charles’s Foundation Doesn’t Have to “Hit the Road Jack”: Ninth Circuit Permits Foundation to Challenge the Validity of Copyright Termination Notices Served by Ray Charles’s Heirs on Third Party Grantees

On July 31, 2015, the Ninth Circuit reversed the Central District of California’s dismissal of an action brought by the Ray Charles Foundation, seeking, among other things, a judicial determination of the validity and effectiveness of termination notices served by some of Ray Charles’s children on Warner/Chappell Music.… Continue Reading

“California Gurl” Katy Perry Not Subject to Personal Jurisdiction in Missouri

The Eastern District of Missouri recently dismissed copyright infringement claims against pop-star Katy Perry, rapper Juicy J, and other individuals for lack of personal jurisdiction, in Marcus Gray p/k/a Flame v. Katheryn Elizabeth Hudson p/k/a Katy Perry.  The lawsuit alleged that Perry’s song “Dark Horse” infringed the plaintiffs’ copyright in their Christian Gospel hip hop song “Joyful Noise,” which … Continue Reading

Owners of Celebrity Fan Sites Still in the Spotlight for Copyright Liability Without DMCA Safe Harbor

The Southern District of New York recently stressed the importance for internet service providers (“ISPs”) to comply with “safe harbor” requirements of the Digital Millennium Copyright Act (“DMCA”) in order to be shielded from copyright infringement liability.  The court, in BWP Media USA Inc. v. Hollywood Fan Sites LLC, found that the defendants, who owned and operated more than … Continue Reading

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