Copyright

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

Who’s Punch Line Is It Anyway? Jokes Are Potentially Copyrightable, Says the U.S. Copyright Office.

For the many everyday citizens who have no recollection of when the New England Patriots won Super Bowl XLIX against the Seattle Seahawks after a “questionable” play call, comedy blogger Robert “Alex” Kaseberg’s (“Kaseberg”) saves the day.  Thanks to his witty remarks, and the legal controversy that subsequently unfolded, the world may never forget. Kaseberg wrote in his blog “A Little Bit Bad” on February 3, 2015: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll”. Pete Carroll is the Seahawk’s head coach, and was at the time of the fateful “Big Game.”  The U.S. Copyright Office seems to have gotten the joke, at least on the second telling.

Kaseberg originally sought to register the joke as a two-sentence 27-word textual work, titled “A LITTLE BIT BAD, Blog Content, Brady Joke February 3, 2015” (the “Work”).  The U.S. Copyright Office federal review board (the “Board”) denied Kaseberg’s first request to register the Work. Kaseberg later sued, among others, Conan O’Brien, and his production company Conaco, after the late night host told a similar joke during his show.  On May 12, 2017, the U.S. District Court for the Southern District of California ruled partially in Kaseberg’s favor, holding that he was entitled to a “thin” copyright in the Work. Continue reading

ARCHIE MD, INC. V. ELSEVIER, INC.: Court Permits Copyright Claim To Proceed Despite Error In Registration Application

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The U.S. District Court for the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

In 2005, Archie MD, Inc. entered into an Animation License Agreement (“ALA”) with the publisher Elsevier, Inc., under which Elsevier would license Archie’s library of 3-D medical animations for use in its various publications. About two weeks after entering into the ALA, and after Archie had delivered the works to Elsevier, Archie submitted a single copyright registration application for a group of unpublished works. This registration included the work at issue in this case, an animation entitled “Cell Differentiation.” The Copyright Office eventually registered the group of works on August 15, 2005. Continue reading

Update – Ninth Circuit Amends Opinion in Mavrix v. LiveJournal, Clarifying that Websites’ Use of Automatic Content Blocking Software Does Not Weigh Against Eligibility for Copyright Safe Harbor

On August 30, 2017, the Ninth Circuit published an amended opinion in Mavrix Photographs v. LiveJournal, a case which concerns the situations under which social media websites and other internet service providers can be held liable for copyright infringement for content submitted by users. The amended opinion removed language from the original opinion that could have potentially penalized websites that use software to automatically block infringing content by causing them to lose protection under the safe harbor of the Digital Millennium Copyright Act.

The case involved a copyright dispute between a paparazzi photo agency, Mavrix Photographs, and the social media website LiveJournal over twenty photographs posted in the site’s celebrity gossip community, Oh No They Didn’t! (“ONTD”). The photos at issue were submitted by users of the website but were reviewed and approved by moderators before they were publicly posted on the site. The Ninth Circuit’s decision concerned the issue of whether LiveJournal was immune from liability under the safe harbor, which protects internet service providers from being held responsible for infringing content submitted by users if the provider complies with the statute’s requirements.  In its original opinion, the Ninth Circuit remanded the case back to the district court to determine whether the acts of the moderators in screening the photographs and making them publicly accessible can be attributed to LiveJournal under agency principles—an overall result which did not change in the amended opinion.  (CDAS’s blog post on the Court’s original opinion, which was issued April 7, is available here. Continue reading

Client Alert: Copyright Office Amends DMCA Designated Agent Rule – May 10, 2017

Earlier today, the U.S. Copyright Office issued a new release of its electronic system used to designate and search for Digital Millennium Copyright Act (DMCA) agents.

Under the DMCA, a qualified online service provider (OSP) is not liable for copyright infringement with respect to infringing material residing on the OSP’s network if, upon notification of a claimed infringement, the OSP acts expeditiously to remove, or disable access to, the material. One of the prerequisites to receiving this statutory “safe harbor” protection is that OSPs must designate an agent to receive notifications of claimed infringement. The OSP must supply its agent’s contact information to the Copyright Office; in turn, the DMCA instructs the Register of Copyrights to maintain a publicly available, current directory of agents. Continue reading

Ninth Circuit Affirms Right of Publicity Claims Over Online Photo Licensing Are Preempted By Copyright Act (Maloney v. T3Media)

On April 5th, in a victory for visual content creators and licensors, the Ninth Circuit affirmed the dismissal of a lawsuit brought by former college athletes alleging that T3Media had misappropriated their names and likenesses by selling licenses to photographs from the NCAA Photo Library. The Ninth Circuit held that the athletes’ claims for right of publicity and unfair competition under California law were preempted by the federal Copyright Act.

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Supreme Court Finds Decorative Elements of Cheerleading Uniforms Eligible for Copyright Protection (Star Athletica, LLC v. Varsity Brands, Inc.)

In an opinion issued last week, the Supreme Court held that a “pictorial, graphic, or sculptural” feature incorporated into the design of a useful article—in this case, a cheerleading uniform—is eligible for copyright protection if it satisfies a two-part test: (1) the element can be perceived as a two- or three-dimensional work of art separate from its underlying useful article; and (2) the element would otherwise be protectable if it were perceived in this manner.

By articulating its own version of the “separability test,” the Court has sought to address and resolve the uncertainty and “widespread disagreement” previously surrounding application of the test by providing a uniform, nationwide standard.

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CDAS Brings in Lindsay W. Bowen to Expand its Copyright, Entertainment and Litigation Practice

Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) is expanding its litigation, entertainment, and intellectual property practice with the strategic hire of litigator and entertainment attorney Lindsay W. Bowen, who has joined the firm as a partner.

Lindsay’s practice focuses on the interplay between creativity and technology.  He represents individuals and companies, from household names to the up-and-coming, across a wide range of creative industries, including advertising, app development, fashion, film, hospitality, music, podcasting, television, and theatre. Prior to joining Cowan, DeBaets, Abrahams & Sheppard LLP, Lindsay was an attorney in the Content, Media & Entertainment practice of Jenner & Block.  There, he represented music, film, television, and theatre clients in copyright ownership and enforcement litigation, royalty disputes, and in the negotiation of a variety of traditional and digital media transactions. Continue reading

Supreme Court Determines Objective Reasonableness Should Receive Substantial Weight in Assessing Fee Awards under the Copyright Act, But Not to Exclusion of Other Factors (Kirtsaeng v. Wiley)

For the first time in twenty-two years, the U.S. Supreme Court, in an opinion issued yesterday, addressed the question of when an award of attorney’s fees is appropriate under the U.S. Copyright Act. According to the Court, the objective reasonableness of a losing party’s legal positions should be given substantial weight within a broader analysis that considers all factors relevant to granting fees.

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