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 … Continue Reading
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”) … Continue Reading
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 … Continue Reading
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
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 … Continue Reading
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 … Continue Reading
On June 22, 2015, the Southern District of Florida held that artists have no public performance rights in their pre-1972 sound recordings under Florida law, in contrast to decisions from California and New York in related litigation. … Continue Reading
On June 8, 2015, the New York County Supreme Court dismissed with prejudice eight of twelve state law claims brought by a producer seeking damages for the purportedly unauthorized use of his music in a world-wide production of Peter Pan. Craig Barna and Bronsand Music Inc. v. Cathy Rigby, Tom McCoy, McCoy Rigby Entertainment, and … Continue Reading
The Central District of California recently awarded over $5 million in attorneys’ fees and over $400,000 in costs, emphasizing the degree of success obtained by Defendants and the improper motivations of Plaintiff. The court rejected the notion that the fee award was unreasonable simply because it was sizeable. In Perfect 10, Inc. v. Giganews, Inc., … Continue Reading
In Garcia v. Google, No. 12-57302 (9th Cir. May 18, 2015), the en banc Ninth Circuit reversed a prior panel decision and held that an actress was not entitled to a preliminary injunction removing all copies of a film from YouTube because she held no copyright in her individual performance. In July 2011, Cindy Lee Garcia … Continue Reading
In Home Legend, LLC v. Mannington Mills, Inc., the Eleventh Circuit recently reversed a grant of summary judgment and held that a two dimensional laminate flooring design was eligible for copyright protection because it reflected sufficient creativity, was severable from the flooring to which it was applied and was directed at a design and not … Continue Reading
On May 6, 2015, in Pandora Media, Inc. v. American Society of Composers, Authors, and Publishers, the Second Circuit held that composers and music publishers cannot partially withdraw from the American Society of Composers, Authors and Publishers (“ASCAP”) licensing scheme to attempt to negotiate or coerce direct deals with new media companies and also affirmed … Continue Reading
In Nola Spice Designs L.L.C. v. Haydel Enterprises, Inc., the Fifth Circuit recently cancelled a New Orleans bakery’s word and design trademarks for “Mardi Gras Bead Dog” – the bakery’s mascot based on the Mardi Gras tradition of parade-goers twisting their plastic beads into the shape of a dog. The appellate court also affirmed the … Continue Reading
The Northern District of Illinois recently held that the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), did not protect a karaoke bar from claims of trademark infringement and unfair competition based on the bar’s knowing use of unauthorized recreations of karaoke tracks. In Slep-Tone Entertainment Corp. v. … Continue Reading
In Flo & Eddie, Inc. v. Pandora Media, Inc., the Central District of California recently refused to apply California’s anti-SLAPP statute to dismiss a copyright infringement lawsuit against Pandora, a leading operator of internet radio service. Although the court found that Pandora was furthering its First Amendment right to free speech by streaming the plaintiff’s … Continue Reading
Last year, the Supreme Court held, in American Broadcasting Companies, Inc. v. Aereo, that a distributor of copyrighted programming over the internet was liable for copyright infringement. Recently, the Central District of California distinguished Aereo in Fox Broadcasting Co. v. DISH Network LLC, holding that certain internet-based services of a satellite television provider did not … Continue Reading
In Omega S.A. v. Costco Wholesale Corp., a global luxury watch company sued an American discount warehouse club based on the defendant’s importation into the United States of a line of the plaintiff’s luxury watches without the permission of the plaintiff copyright holder. Applying the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, … Continue Reading
The issue of whether a party has engaged in a volitional act, or has the ability to control an infringer, sufficient to result in liability for copyright infringement, either as a direct infringer or through vicarious copyright infringement, has taken on new significance due to the rise of online sellers providing goods and services. In … Continue Reading
In Beastie Boys v. Monster Energy Company, 2014 WL 6845860 (S.D.N.Y. Dec. 4, 2014), the Southern District of New York found that the jury’s award of $1.2 million in statutory damages to the plaintiff group on their copyright infringement claim was “not so high as to ‘shock the conscience.’” The court, therefore, rejected the defendant … Continue Reading
Recently, district courts in Virginia and Illinois applied similar two-prong tests to determine whether state law claims were preempted by the Copyright Act. In Maxient, LLC v. Symplicity Corp., 2014 WL 5422195 (E.D. Va. Oct. 23, 2014), a number of Symplicity’s customers left Symplicity for its competitor, Maxient. Symplicity decrypted these former customers’ passwords, used … Continue Reading
The recent decision in Kienitz v. Sconnie Nation LLC, No. 13-3004, 2014 WL 4494835 (7th Cir. Sept. 15, 2014) suggests that the Seventh Circuit is at odds with the Second Circuit as to which factor is most important for determining when the fair use defense to copyright infringement should apply, and as to the appropriate … Continue Reading
