Copyright

Chambers USA 2018 Ranks Partners Lackman and Wolff as Top IP Attorneys; Recognizes Two Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) Practice Groups

Cowan, DeBaets, Abrahams & Sheppard LLP is delighted to announce that partners Eleanor M. Lackman and Nancy E. Wolff and both CDAS’s Entertainment and IP, Copyright and Litigation Practices have been recognized by Chambers and Partners in the Chambers USA 2018: America’s Leading Lawyers for Business guide.

Eleanor M. Lackman

Nancy E. Wolff

This is the fifth consecutive year Ms. Lackman and the second consecutive year Ms. Wolff have been ranked in the Chambers USA guide. They are both among just 41 New York lawyers ranked in the field of “Intellectual Property: Trademark, Copyright & Trade Secrets – New York.”

“Impressed sources” told Chambers that Ms. Lackman is “an absolutely incredible trademark litigator” and added: “She is very practical and always seems to make the right call.” She also has notable experience handling copyright matters, often advising clients across the media and entertainment industries.

Chambers describes Ms. Wolff as “very well-known and well-respected.” She receives plaudits for her expertise in a range of complex copyright matters and is highlighted for her particular skill across the photography and visual art industry.

CDAS’s Entertainment Practice was awarded a regional designation of “Noted Firm” in “Media & Entertainment: Film, Music, Television & Theater – New York” for the third consecutive year, while the Firm’s IP, Copyright and Litigation Practice received a  “Noted Firm” designation in “Intellectual Property: Trademark, Copyright & Trade Secrets – New York” for the second consecutive year.

The annual guide ranks law firms and lawyers based on in-depth interviews with clients and lawyers, technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

CDAS’s Copyright Photo/Video Claims Defense Checklist for Media Platforms

Copyright infringement claims from photographers and image licensing companies have become increasingly common with the widespread use of easily accessible digital content on the Internet and in social media.  Photo copyright owners discover these claims en masse by way of image recognition software, and often pursue them using high-volume contingency fee-based law firms, claiming that any number of posts from time immemorial constitute infringements justifying large settlement demands.  But just because you’ve received an unreasonably high demand that far exceeds any typical license fee doesn’t mean you’re liable for that amount.  Some due diligence can help you gain leverage in these disputes, and possibly even avoid further litigation.  To be sure, content creators should be fairly paid if their content has been misused, but the extremely aggressive way some of these claims are pursued calls for a nuanced and informed approach.  You should contact a firm with experience in copyright and litigating image claims if you find yourself on the business end of one of these demands (especially a formal lawsuit), but for now, here are the basic steps you should take to preserve your best defenses and minimize potential exposure to costs and damages: Continue reading

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.”  TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos.  Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail.  Clients pay $500 per month for these services. Continue reading

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

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

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

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