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.
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
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.
In a complaint filed in the U.S. District Court for the Southern District of New York this month, a group of tattoo artists (through a licensing entity) sued the developer, publisher, and marketer of the immensely popular NBA 2K16 video game over digital depictions of tattoos the artists had inked on the real-life basketball players appearing in the game, including LeBron James and Kobe Bryant. Claiming violation of their exclusive right of public display under 17 U.S.C. § 106(5), the artist collective in Solid Oak Sketches, LLC v. Visual Concepts, LLC seeks monetary damages, costs and fees, and injunctive relief against production of the game and any further “public displays” of the tattoos. While it may seem outlandish at first blush, cases like Solid Oak Sketches are becoming more common.
Cowan, DeBaets, Abrahams & Sheppard LLP is pleased to announce that Scott J. Sholder has become a Partner of the Firm
Scott J. Sholder is a partner in the firm’s Litigation Group. Scott represents individuals and companies in the entertainment, traditional and digital media, sports, and consumer products industries. His practice focuses on matters involving copyrights, trademarks, the right of publicity, and contractual and business disputes.
In an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA). The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube. Continue reading
So far this year two federal courts have addressed important issues relating to Internet service providers’ (“ISP”) safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). One court dealt with the necessity of registering a DMCA agent for the service of takedown notices with the Copyright Office, and the other addressed, for the first time, what is meant by the term “user” in connection with the user-generated-content safe harbor provision, 17 U.S.C. § 512(c). These two cases’ holdings provide important clarifications and practical guidance for ISPs in securing DMCA eligibility and determining section 512(c)’s applicability. Continue reading
When composer Jack Urbont brought suit for copyright infringement against rapper Dennis Coles (popularly known as Ghostface Killah), Urbont likely thought he had a straight-forward case. Urbont claimed that Coles’ had improperly sampled Urbont’s “Iron Man Theme” on Coles’ album, Supreme Clientele. Written for the Marvel television program Marvel Super Heroes, the Iron Man Theme served as the theme song for the “Iron Man” portion of the program. Urbont alleged that Coles, along with Sony Music Entertainment and Razor Sharp Records, infringed Urbont’s copyright in both the Iron Man musical composition and sound recording. In order to prove infringement, Urbont needed to demonstrate both ownership of a valid copyright, and copying of the original elements of his work. Urbont seemed to easily satisfy the first requirement: he owned both the initial and renewal copyright registrations in the Iron Man Theme musical composition and, as further proof of ownership, Urbont and Marvel had entered into a licensing agreement in which Urbont is referred to as the “owner,” and Marvel the “licensee,” of the work. According to Sony, however, Urbont composed the Iron Man Theme as a “work for hire,” placing copyright ownership in Marvel, and not Urbont. U.S. District Judge Naomi R. Buchwald agreed, undertaking an analysis focused on the original intent of Urbont and Marvel as to copyright ownership. Continue reading
Arne Svenson, a New York-based fine art photographer, prevailed on an appeal before the New York Supreme Court Appellate Division, First Department, filed by plaintiffs Martha and Matthew Foster, who had unsuccessfully sought to prevent the display, promotion, or sale of certain photographs from Svenson’s popular series “The Neighbors” by invoking New York’s right of privacy statute. A unanimous panel of the court held that Svenson’s photographs – taken with a telephoto camera lens without his subjects’ knowledge – “is not actionable as a statutory tort of invasion of privacy” because “the images in question constituted art work and, thus [are] not deemed ‘use for advertising or trade purposes,’ within the meaning of the [privacy] statute.” The court noted that the plaintiffs’ complaints were “best addressed to the Legislature” given the narrow scope of New York’s privacy law. Continue reading
The U.S. District Court for the Central District of California in Maloney v. T3Media, Inc. recently held that state right-of-publicity claims brought by former college basketball players complaining of photographs licensed of their likenesses without consent warranted dismissal with prejudice pursuant to California’s anti-SLAPP statute, which prohibits suits aimed at inhibiting free expression. Members of the 2001 NCAA Division III champion Catholic University basketball team sued T3Media, a cloud storage, hosting, and digital licensing service, alleging violations of their rights of publicity when photographs of the players from the NCAA championship were displayed and made available for licensing on T3Media’s website.