On Monday a California appeals court handed down a decision in the closely watched case of de Havilland v. FX Networks, LLC et al., triggering a collective sigh of relief from studios, networks, and other content producers. The court’s decision reaffirms two widely recognized principles: (1) that the First Amendment’s protection of creative works is not limited by the mere fact that a work generates income, and (2) that an individual cannot censor the way in which she is depicted in a creative work merely because she does not like that depiction.
These principles, as applied to the entertainment industry, have been challenged in recent years with a wave of cases such as de Havilland. For instance, a case in New York, Porco v. Lifetime Entertainment Services, LLC, was allowed to proceed after an appellate court held that the newsworthiness exception to New York’s statutory right of publicity did not apply to a docudrama that substantially fictionalized the life story of a real person. The court stated that such a work was “mainly a product of the imagination” and thus “nothing more than [an] attempt to trade on the persona of the plaintiff.” Continue reading
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
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
Fyre festival, vigorously promoted by “social media influencers” such as Kendall Jenner, Gigi Hadid, and Emily Ratajkowski as a “luxury” music festival with tickets ranging in price from $1,200 to over $100,000 per person, was scheduled to take place over two weekends in April and two weekends in May on the “private” Bahamian island of Great Exuma. Unfortunately, the festival was not nearly what its promoters were touting: it ended up being, what some described as, a “post-apocalyptic nightmare” resembling a chapter out of the “Lord of the Flies.” The story of Fyre Festival blew up in the press this spring, and is now lighting up the federal court system.
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
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.
Yesterday President Obama signed the Defend Trade Secrets Act of 2016 (“DTSA”), the culmination of several years of bipartisan efforts to federalize trade secret protection, placing it alongside the federal copyright, trademark, and patent statutes. The DTSA – an extension of the Economic Espionage Act of 1996 – should be significant, generally, to businesses concerned about protecting competitively sensitive information from misappropriation by former employees, industrial spies, and foreign nationals. It should prove particularly useful to those in the online and digital media space as an important tool in the prevention and remedying of the theft of software-based products. The DTSA has strong support from the software industry, including from Microsoft, IBM, Adobe, Micron, and the Software Information Industry Association. Here are three key takeaways from the passage of the DTSA:
Yesterday, CDAS submitted an amicus brief in a high-profile case involving the distribution of television programming over the Internet. The brief, on behalf of the Copyright Alliance, was filed in the Ninth Circuit Court of Appeals in support of the appellants in the case captioned Fox Television Stations Inc. v. FilmOn X. This is the second amicus brief that CDAS’s litigation team has submitted this week, with the other coming two days prior in support of a petition to the U.S. Supreme Court for certiorari in the Google Books case.
To view the full brief, please see the PDF below.
CDAS Files Amicus Brief in Fox Television Stations Inc. v. FilmOn X