Legal Blog

Goldman v. Breitbart News, LLC: The Embedding Balance Has Tipped

Update to November 17, 2017 Post.

Last week, Judge Forrest of the U.S. District Court for the Southern District of New York in Goldman v. Breitbart News, LLC – one of a pair of cases pending in Manhattan federal court concerning the practice of “embedding” copyrighted content – issued a ruling in favor of the plaintiff, photographer Justin Goldman, holding that embedding (or framing) does not immunize content users from copyright infringement claims.  The court declined to adopt the Ninth Circuit’s “server test” as set forth in Amazon v. Perfect 10, holding that the location of the allegedly infringed work does not determine whether a defendant has “publicly displayed’ that work in violation of the copyright owner’s exclusive rights.  Put another way, “the fact that the image was hosted on a server owned and operated by an unrelated third party . . . does not shield” defendants from a finding that a plaintiff’s display right had been violated.

The court chiefly relied on the language of the Copyright Act, including § 101’s definition of “display,” which includes showing a copy of a work by any “device or process,” and transmitting or communicating a display by means of any “device or process.”  The court explained that the Copyright Act does not require a user to possess, or to store at their own physical location, a copy of the work in order to display it within the meaning of the statute.  The court further looked to legislative history and the 2014 decision in Aereo to note the application of the Copyright Act to new technologies.   Continue reading

Three Music Industry Reform Bills to Watch: Congress Introduces Legislation to Modernize Music in the Digital Age

In a rare show of bipartisanship, Congress has proposed legislation that would financially benefit music creators who have either been overlooked in the past or are compensated on inconsistent terms.  Three bills –  the Fair Play, Fair Pay Act, the CLASSICS Act and the Music Modernization Act (all of which have bipartisan support) – were introduced in 2017 to reform Copyright laws and bring balance to the music industry.  As copyright reform has gained much traction in the past month, with a House Judiciary field hearing that took place in New York City on January 26, 2018, the three bills represent hope for change and needed updates in the digital music era.

Fair Play, Fair Pay Act

The Fair Play, Fair Pay Act, introduced March 2017, aims to extend a copyright owner’s rights to include the right to perform a sound recording publicly by means of any transmission – including traditional broadcast.  Currently, the Copyright Act affords the owners of musical compositions (the underlying music and lyrics) the right to perform a sound recording publicly, but only provides a much narrower public performance right for owners of sound recordings, limited to performance by means of digital transmissions by cable, satellite, and internet radio stations.  For instance, when an internet radio station such as Pandora streams a song, the artist and record label receive a statutory royalty for the performance of the sound recording, but when that same song is played on terrestrial AM/FM radio, the artist and record label are not compensated (in both scenarios the writer and/or publisher of the song is paid for the performance of the composition, though).  The radio industry has consistently defended the lack of monetary compensation for radio air play, citing the promotional value that radio uniquely brings an artist and record label. Continue reading

Children’s Clothing Company Sinks in Trademark Row Against Viacom Over its Use of Term “GUPPIES” in Promotional Merchandise for “Bubble Guppies” Cartoon

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a lower-court decision that Viacom’s use of the trademark “BUBBLE GUPPIES” for promotional merchandise for its show of the same name did not infringe on a children’s clothing brand that had registered the trademark “GUPPIES,” primarily because the “GUPPIES” mark – which had been used for many years before Viacom’s use– was relatively unknown to the public.

According to the lawsuit, Plaintiffs Debbie and Dean Rohn have operated Guppie Kids, Inc., a children’s apparel brand, since 1990.  The couple registered two trademarks for apparel-related items: one for the word “GUPPIE,” an acronym for “Growing Up Playing Pursuing Individual Excellence,” and the other for a logo: the word “GUPPIE,” in which a fish in a necktie forms the letter G.   Continue reading

A Coming Change: KodakOne Attempts to Prevent Unlicensed Use of Pictures

On January 9th, Kodak announced its intention to enter the cryptocurrency craze by developing a blockchain-based service that presumably allow participating photographers to get paid each time their licensed work is used on the Internet without their prior consent. As described on the company’s website, the digital platform, currently referred to as KODAKOne, will “provide continual web crawling to monitor and protect the [intellectual property] of images registered in the KODAKOne system.” Upon detection of an unlicensed use, Kodak will manage the post-licensing process and (i) have the picture removed, or (ii) compensate the participating photographer in the company’s own currency, referred to as KodakCoin. By December 11th, the company’s stock had more than tripled. Continue reading

Copyright Royalty Board Announces Compulsory Mechanical License Rate Hike for Interactive Streaming/Limited Download Services

On January 26, 2018, the United States Copyright Royalty Board (the “CRB”) released its initial determination regarding the royalty rates and terms of use that will apply over the next five years to the compulsory license of musical compositions in connection with the distribution of physical and digital phonorecords (sound recordings not accompanying an audio-visual work).  The highly anticipated ruling is the result of a CRB rate hearing that was initiated by the National Music Publishers’ Association and the Nashville Songwriters Association International and that took place between March and June of last year.  The new rules will become effective as of the date the CRB releases its final determination, which amongst other things, will include the CRB’s rate determinations for physical phonorecord deliveries and permanent downloads not yet addressed in the initial CRB announcement.  The final determination will result in a substantial increase to the mechanical royalty rate to be paid by interactive streaming/limited download services such as Spotify, Apple, Amazon, and Google. Continue reading

How Networks/SVOD/SAG-AFTRA are Updating/Changing Their Sexual Harassment Policies and Increasing Training at Work in Light of Sexual Harassment Accusations

Sexual assault and harassment complaints in the Hollywood working world are up 500 percent for SAG-AFTRA in the post-Harvey Weinstein era.  The pressure is present and growing for companies whose executives, employees, and/or talent have been accused of, or have been victims of such assaults.  For example, following the firing of The Today Show co-anchor Matt Lauer for inappropriate sexual behavior, Andy Lack, chairman of NBC News and MSNBC said that the company is retaining “a firm to conduct in person, interactive training on workplace behavior and harassment prevention.”  Moreover, SAG-AFTRA’s attorney Gloria Allred led a panel for guild members called “Beyond the Headlines: A Conversation on Sexual Harassment and Abuse in the Entertainment Industry” a few weeks into the Hollywood sexual harassment and assault scandals to share and discuss strategies for dealing with harassment and observing harassment in the Hollywood workplace.  Gabrielle Carteris, SAG-AFTRA’s president, said in a Vanity Fair interview that Harvey Weinstein’s stories have “created a conversation that we haven’t had in the open in a very full way[.] Everybody is re-evaluating their policies and procedures. We’re talking about, as an industry, how do we do this?”  As a result, the industry is already changing its audition practices; one-on-one male/female auditions are declining: “If it’s just the male director there…don’t go in that room,” said casting director Debra Zane. “[Although auditions] are not a contract issue, […] those are our members, so we want to give voice to them. Our job as a union is to protect people and give them a sense of safety when they’re working,” said Carteris.  “Additionally, studios are launching more and more investigations; updating their sexual harassment policies and sharing them with producers; producers are conducting sexual harassment trainings on set; contracts’ moral clause are being revised; and actors are launching anti-sexual harassment campaigns.  Needless to say, this issue goes beyond the Hollywood working world with the #MeToo movement created by sexual assault and harassment victims to virally share their stories.

SOURCES:

USA Today: Sexual harassment accusations changing office policies, increasing training at work

Vanity Fair: With Harassment Complaints Up 500 Percent, the Screen Actors Guild Grapples with a Post-Harvey Weinstein Era

Vanity Fair: Jeffrey Tambor Denies Sexual-Harassment Claim as Amazon Launches an Investigation

Forbes: Sexual Harassment In The Workplace In A #MeToo World

MarketWatch: Women in Hollywood are fighting to change the culture of sexual harassment

 

The Ninth Circuit Affirms Significant Legal Victory for Fox, Allowing Hit Television Series Empire to Continue Producing Show and Merchandise over Record Label Empire Distribution’s Objections

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a lower court’s holding that Fox’s use of the name “Empire” for its hit television series is protected by the First Amendment, leaving record label Empire Distribution without any recourse on its trademark infringement claims.  A copy of the full decision is available here.  Of most significance is the court’s arguable expansion of the Rogers v. Grimaldi test for expressive use of trademarks into the realm of promotion and merchandise.

Empire Distribution, founded in 2010, records and releases albums in the genres of hip hop, rap, reggae, and R&B under the name “Empire.”  Its portfolio of artists includes Snoop Dog, T.I., and Kendrick Lamar.  In 2015, Fox premiered its Empire television show, a drama that centers on a fictional New York-based hip hop music and entertainment company called “Empire Entertainment.”  The Empire show features songs and original music, which Fox releases through Columbia Records after the episode airs, and packages as soundtrack albums at the end of each season – of which there have been four and counting. Continue reading

Notable TV and Digital Deals from Q3-4 2017

The last few months have seen a number of high-profile deals in episodic programming, spurred in part by the entry of a number of significant new players in the marketplace. Here are a few particularly noteworthy entries:

Jennifer Aniston, Reese Witherspoon Morning Show Drama Lands at Apple With Two-Season Order

Apple is anticipated to become a major purchaser of entertainment content, and it made a splash with its first show announcement – a two-season order for a show starring and executive produced by Jennifer Aniston and Reese Witherspoon, set inside the cutthroat world of morning television.

Lin-Manuel Miranda’s ‘Kingkiller Chronicle’ Series Set At Showtime

Everyone is looking for the next “Game of Thrones and “The Kingkiller Chronicles,” in development at Showtime and based on Patrick Rothfuss’s acclaimed fantasy series, may be it. “Hamilton” creator Lin-Manuel Miranda is attached to executive produce, and will contribute music to the series – a key development as music is an important component of Rothfuss’s books. Continue reading

Florida Supreme Court Sides with Sirius XM in Battle over Pre-1972 Sound Recording Royalties

In a decision issued last month in the ongoing battle waged by former members of the 1960s rock group The Turtles over the scope of copyright performance rights in sound recordings, the Florida Supreme Court concluded that pre-1972 sound recordings are not protected by Florida state law.

The U.S. Court of Appeals for the Eleventh Circuit asked the Florida Supreme Court to interpret Florida state law in connection with the federal lawsuit brought by Flo & Eddie, Inc., the company that owns the master sound recordings of certain musical performances by The Turtles—recordings that are not subject to federal copyright law—against satellite and internet radio provider Sirius XM Radio. Sirius broadcasts Turtles songs to Sirius’s subscribers without paying any royalties to, and without a license from, Flo & Eddie – a practice that Flo & Eddie, for several years, have also sought to invalidate in the New York and California courts.
Flo & Eddie claimed that Sirius’s broadcast of Turtles songs constitutes unauthorized public performances of the sound recordings, and that Sirius’s creation of back-up and buffer copies of the sound recordings constitutes unauthorized reproductions. Because sound recordings created before February 15, 1972 are not protected by federal copyright law, the question of whether “pre-1972” recordings enjoy a public performance right (as post-1972 sound recordings do when digitally transmitted) was certified to the Florida Supreme Court. That court ultimately found that no such right exists. Continue reading

Embedding in the Balance: the Goldman Cases

In a pair of cases pending in the U.S. District Court for the Southern District of New York, photographer Justin Goldman and various online media outlets seek to set the record straight on whether embedding images on a website through in-line linking without authorization constitutes copyright infringement.  A website embeds an image using an in-line link when it uses HTML code to direct a user’s browser to an image file hosted on and transmitted from a server controlled by a third-party (usually another website) yet it appears as if the image resides on the website the user is actually viewing.  The allegedly infringing website effectively opens a “window” allowing the user to see an image hosted by a third party, yet never actually copies, stores, or serves up the image itself.

This is the technological method the defendants used in the Goldman cases, and that many other digital media companies have come to rely on in certain situations (e.g., when images or videos are not available for license), but that many content owners believe harms the image licensing market by leaving open a legal back door around otherwise infringing unlicensed uses. Continue reading

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