Category Archives: Copyright

Georgia State University Copyright Update: Publishers Appeal to 11th Circuit

Approximately a year ago, Judge Orinda Evans of the Federal District Court for Northern Georgia held that the electronic reserves practices of the library at Georgia State University (“GSU”) were, for the most part, fair use and not copyright infringement.  While some were surprised by the liberal breadth of the court’s interpretation and application of the fair [...]

Another Blow Is Struck Against Monetization of Copyright Enforcement Claims

  In a decision issued earlier this month, the Ninth Circuit held that the right to bring copyright claims cannot be transferred without an accompanying transfer of copyright ownership itself. The ruling came in consolidated cases which had been brought in the District of Nevada by Righthaven, LLC, an entity which had been founded for the purpose [...]

Copyright Law Reform Engages Both Courts and Congress

Big changes may be afoot in copyright law these days, via both litigation and legislation.  Courts are considering sweeping infringement claims with potentially far-reaching implications, and Congress is beginning the process of a massive overhaul of copyright statutes.  We provide here a brief rundown of some recent developments. Authors Guild v. Google As we have [...]

Lady Gaga: She’s No (Copyright) Monster

The federal district court in New Jersey has dismissed Stefani Germanotta, a.k.a. Lady Gaga, from a copyright lawsuit filed by composer and record producer Calvin Gaines.  Mr. Gaines alleged in his complaint that his writing and producing partner, Rob Fusari, proved to be something of a Judas by betraying their longstanding collaborative relationship.  According to [...]

Spider-Man Lives to Web-Sling (and Sing) Another Day Following Settlement of Copyright Suit

After infamously departing (i.e., being fired) from the nascent production of the Broadway musical Spider-Man: Turn Off the Dark, acclaimed stage and screen director Julie Taymor filed suit against the show’s producers.  As discussed previously on this blog, Taymor brought claims for breach of contract as well as copyright infringement.  The stakes were high.  Had [...]

Admissions of “Appropriation Artist” Not Fatal to Copyright Fair Use Defense

The first prong of the fair use defense in copyright infringement cases, the “purpose and character of the use,” is often described as an inquiry into whether the allegedly infringing work is “transformative.” In other words, does the allegedly infringing work add something new, thus altering the message of the original, or does it essentially just [...]

Viacom’s Copyright Suit against YouTube Again Faces DMCA Roadblocks in the District Court

            Following the Second Circuit’s remand order last year on appeal of an initial grant of summary judgment for YouTube, the Southern District of New York has revisited the issues in Viacom’s copyright infringement suit and again found that the Digital Millennium Copyright Act (“DMCA”) shields YouTube from liability for infringing video clips posted by [...]

Copyright Fair Use Defense Not Available to Aggregator of AP News Clips

  A U.S. federal court has held that the publication by a media monitoring service of excerpts from Associated Press news articles is copyright infringement for which the fair use defense is not available.  The Associated Press v. Meltwater U.S. Holdings, Inc. et al., 12 Civ. 1087 (March 21, 2013).  The case provides a victory [...]

A Far Cry from the Same Injury: Judge Rebuffs Class Action Against Copyright “Settlement Fraud”

Ever since the entertainment industry figured out how to use IP addresses to bring copyright infringement lawsuits against illegal downloaders, defendants and critics have been calling these plaintiffs “trolls”.  But name-calling wasn’t enough  for Dmitriy Shirokov.  He wanted payback, and brought a class action lawsuit against his persecutors.  However, according to an order issued earlier this [...]

Superheroes of Copyright: When Do Fictional Characters Enjoy Copyright Protection?

Several recent cases have highlighted the interesting issue of whether and when fictional characters – as distinct from the works they inhabit – are subject to copyright protection.  Over the years, courts have developed two main tests for determining whether characters are worthy of copyright protection.  First, as Judge Hand pointed out in the 1930 [...]

Hopper Copyright Litigation Takes Center Stage at the Consumer Electronics Show

Dish Networks’ Hopper device has spurred a considerable amount of legal controversy. Recently, that controversy made its way into the official award ceremony of the Consumer Electronics Show. Dish released its Hopper DVR in May 2012.  The Hopper’s “Primetime Anytime” feature automatically records the entire primetime lineups of CBS, ABC, FOX, and NBC.  During playback, [...]

Will the Supreme Court Review Copyright Damages in Music Downloading Case?

Like Joel Tenenbaum, who has been discussed in prior entries in this blog, Jammie Thomas-Rasset has conducted a long-running battle with the recording industry over how much damages she should pay for her downloading activity.  Like Mr. Tenenbaum, she argues that large statutory damages are unfair against individual “consumer” downloaders who contributed only minimally to [...]

Publishers Appeal Georgia State University Copyright Ruling

We’ve previously written about the academic publishing industry’s lawsuit against Georgia State University (“GSU”) and its library system’s electronic reserve practices.  In May, Northern District of Georgia Judge Orinda Evans held  that these practices were, with a few exceptions, fair use. Last week, the publishers docketed their much-expected appeal with the 11th Circuit Court of Appeals.  Among the issues [...]

Google Settles Long-Running Copyright Dispute with Book Publishers

Yesterday Google and the Association of American Publishers (AAP) announced that they have settled the litigation filed in 2005 by the AAP challenging the Google Books Library Project. As we have previously reported, Google is involved in an ambitious project to digitize the contents of a number of the world’s largest libraries and to make [...]

Update: $675,000 Jury Verdict Against Music File-Sharer Upheld

As previously discussed on this blog, last year the First Circuit held that the jury verdict for $675,000 in statutory damages against graduate student and file sharer Joel Tenenbaum should not have been reduced to $67,500 by District Court Judge Nancy Gertner on constitutional grounds. The case was remanded for consideration of Tenenbaum’s motion for [...]

Political Fair Use Par V: The Dulcet Tones of Presidential Copyright Infringement

Mitt Romney seems to attract copyright controversies like his bank account attracts interest. During the 2012 presidential campaign, Candidate Romney has already had copyright rows with Tom Brokaw and CNN. Now, he’s got three more. Last month, President Obama’s campaign used Romney’s cringe-worthy rendition of “America the Beautiful” (a song in the public domain) as [...]

Foley Hoag Attorneys to Screen Provocative, Academy Award-Winning LOGORAMA Film and Lead Discussion of Copyright and Trademark Fair Use Issues

Honestly, who hasn’t fantasized at some point about Ronald McDonald grabbing an Uzi and slaughtering his way through corporate America?  LOGORAMA, the Academy Award-winning animated short, involves a gritty police chase set in a Los Angeles-inspired cityscape entirely populated by over 2,500 contemporary and historical trademarks and logos.  We couldn’t let this provocative and fascinating [...]

Access Denied: Canadian Academics Debate Controversial Copyright Licensing Deal

In 2006, square-jawed super hero Captain Copyright arrived in Canada, vowing “to protect the rights of artists, writers, musicians, photographers, filmmakers . . . and everyone in between.” Captain Copyright was the brainchild of Access Copyright, a Canadian non-profit organization that serves as a licensing conduit between the authors of copyrighted materials and those who use [...]

Rest In Peace, Perfect10 v. Google: Epic Soft-Porn Copyright Struggle Finally Dismissed

The firmament of copyright blog topics just got a little dimmer, and a lot better clothed. Last month, after eleven years, three Ninth Circuit opinions and 1,212 docket entries in the trial court, soft-porn multimedia company Perfect10, Inc. stipulated to the dismissal of its copyright infringement claims against Google (and others) in the Federal District [...]

Bear and Copyright Contract Fall Through the Cracks: Who Owns Student Art Work?

In the early 1990’s, when I was applying to film schools, I recall that different schools had different policies regarding the copyright ownership of student work. Copyright in any work, of course, is owned by the author in the first instance. However, many colleges and universities have policies (and in some cases contracts) that purport [...]

Second Circuit Reverses Convictions in Data-Theft Prosecution and Narrowly Interprets Federal Criminal Statutes with Important Intellectual Property Implications

On our sister blog, Security, Privacy and the Law, our colleague Daniel Marx reports on a recent Second Circuit case addressing the limits of criminal liability for the theft of intellectual property. It turns out that criminal liability can turn on some rather technical details – such as whether the allegedly stolen source code was [...]

Viacom’s Copyright Suit Against YouTube Gets a Second Chance from the Second Circuit

The Second Circuit has ruled that the summary judgment granted last year in favor of YouTube in a copyright suit brought by Viacom and other content owners was premature. The District Court had found that YouTube was protected by one of the Digital Millennium Copyright Act’s (“DMCA”) safe harbor provisions, namely, 17 U.S.C. § 512(c), [...]

Pinterest’s Popularity Soars, But (P)Interesting Copyright Questions Abound

In a world where Facebook isn’t a social network but The Social Network, it’s difficult for a new social networking site to gain traction. Since there’s already someone out there doing it bigger, the alternative has to be better — at least in some respect. Enter Pinterest, the latest social networking site on the block. If you haven’t [...]

Oh What a Tangled Web: Does Julie Taymor have a valid copyright in Spider-Man?

The backstage drama, from the classic 1950 film All About Eve to the new television hit Smash, is an oft employed narrative convention filled with juicy melodrama between show business colleagues set to the backdrop of a spectacular stage production. The copyright infringement lawsuit filed in late 2011 by internationally acclaimed theater and film director [...]

IP Dispatches from the Political Front: Mitt Slings Copyrighted Mud at Newt

Along with January’s hot activity in the race for the Republican Presidential nomination, we also saw the emergence of two more stories about the intersection of intellectual property and political ads. One issue is “déjà vu all over again”: political fair use. We are once again confronted with the question of to what extent the [...]

Congress Puts SOPA and PIPA on Hold

In the wake of last week’s web protests and media attention around pending anti-piracy legislation, leaders in both houses of Congress announced on Friday that they would indefinitely postpone further consideration of the Stop Online Piracy Act (“SOPA”) and the PROTECT IP Act (“PIPA”). Senate Majority Leader Harry Reid (D-NV) cancelled the cloture “test” vote [...]

Historic Web Blackouts Catapult SOPA into Headlines

The tide may be changing in the controversy over SOPA and PROTECT IP (or “PIPA”), the anti-piracy bills that have been making their way through, respectively, the House and the Senate in recent months. Yesterday’s unprecedented 24-hour global blackout of the English Wikipedia site in protest of the legislation and the new enforcement powers it [...]

A Copyright Hangover: Political Fair Use Revisited, Again

Political primary season is upon us and, just like a bad hangover, one particular political speech question just keeps creating headaches. To what extent is the unauthorized use of copyrighted material in political campaign advertisements protected by the fair use doctrine? Can political ads borrow a clip from a presidential debate? From a televised sporting [...]

Revenge Porn: “Is Anyone Up” on Copyright Law?

Here’s something you probably don’t want fixed in a tangible medium of expression: revenge porn. Twenty-five-year-old Hunter Moore (pictured, above right) is the creator of the website Is Anyone Up (www.isanyoneup.com). In essence, here’s how revenge porn works: Remember those naked pictures you took of yourself and sent to a very close friend with the [...]

A New Twist on eBay: Compulsory Licensing in Copyright Cases?

As most readers know, the Supreme Court held in the 2006 eBay decision that injunctions were no longer to be the norm in patent cases, and irreparable harm was not to be presumed. Instead, injunctions are within the equitable discretion of the district court, and are to be granted only if the plaintiff has shown [...]

MAFIAA Fire Potentially Meets Its Match

Back in May, we wrote about MAFIAA Fire, a browser plug-in created by anonymous coders to counteract the government’s efforts to shut down copyright-infringing web sites by seizing the domain names.

You Naughty, Naughty Men: Is There An Obscenity Defense to Copyright Infringement?

We previously posted about Massachusetts District Court Judge Young’s order allowing copyright infringement plaintiff Liberty Media to discover (and thereby potentially reveal to the public!) the identity of 38 “John Doe” downloaders of “Amateur College Men Down on the Farm,” a pornographic film. But perhaps the most far-reaching implication of Judge Young’s opinion was a footnote. [...]

Risks of an Unrestricted License

The recent case of Edgenet, Inc. v. Home Depot U.S.A., Inc. (7th Cir., No. 10-1335, 9/2/11) illustrates the principle that a copyright license without restrictions will be broadly construed to encompass all rights. The facts of the case were that Home Depot had contracted in 2004 with Edgenet for Edgenet to develop a classification system [...]

Court Orders Identity of BitTorrent Users to be Revealed in Copyright Case

BitTorrent users now have even more reason to be concerned if they are targeted in “John Doe” lawsuits for copyright infringement. In a recent case, 38 BitTorrent users, known only by their IP addresses and identified as John Does, were sued as a group. Three of the John Does sought to quash the subpoenas issued [...]

How Useful Is Your Halloween Costume? Knock-off Costumes and the Useful Article Doctrine

So, I hear you are selling Halloween costumes, the designs for which you copied from another manufacturer. Well, gather around the fire, because I have a very scary story to tell you. Chosun International was the manufacturer of impossibly cute animal costumes for children, featuring plush sculpted hoods and sleeves shaped like various animals’ heads [...]

Update: Autodesk Still Owns Your Software

On October 3, 2011 the U.S. Supreme Court declined a request to grant certiorari in Vernor v. Autodesk. As we reported previously, enterprising vendor Timothy Vernor, who attempted to sell second-hand (but unopened and authentic) copies of Autodesk’s AutoCAD software on eBay, was rebuffed by the Ninth Circuit, which determined that Autodesk’s customers were licensees [...]

The Guantanamo Copyright SNAFU and the History of the Government Works Doctrine

Last week, Miami Herald reporter Carol Rosenberg, perhaps best known for her coverage of government activities at Guantanamo Bay, reported that the U.S. government had violated U.S. Copyright law . . . kind of. In an effort to “rebrand” its military tribunals, the Pentagon spent about $500,000 on a new website, http://www.mc.mil/. After all that [...]

The Second Circuit Agrees: Just Say No to Gray Market Goods

Under U.S. law, a copyright holder possesses the exclusive right to copy and distribute the copyrighted work. However, after the copyright owner sells a copy, the First Sale Doctrine permits the subsequent owner to re-distribute the copy without consent or interference from the copyright holder. This is why, once you buy a book or a [...]

First Circuit Rejects Reduction of $675,000 Damages Award in Music File-Sharing Case

The First Circuit has kept alive a dispute, well-publicized in the Boston area and elsewhere, about what statutory damages can properly be assessed against a graduate student who illegally shared files of copyrighted music via file-sharing program Kazaa.  See here for an overview of the case, as well as links to various related content and [...]

Author! Author! Can Monkeys own Copyrights in Self-Portraits?

No, monkeys can’t own copyrights. But please read on. This relatively simple answer to a question nobody is seriously asking hasn’t prevented the emergence of a strange copyright controversy over a series of monkey-taken photographs, including the self-portrait on the left. Wildlife photographer David Slater was visiting a North Sulawesi national park in Indonesia when he left his [...]

Do You Believe In Miracles? Political Fair Use Revisited

Several months ago, we highlighted the Canadian Conservative party’s use of the Canadian Broadcasting Company’s copyrighted footage in political attack ads. (Not Quite Fair Use: Canada’s Fair Dealing Exception to Copyright Infringement in the Political Spotlight). In defense of its ads, the Conservative party argued by analogy that such use of copyrighted material for political [...]

Harry Potter and the [Allegedly] Purloined Font

Just in time for the release of the final installment in the Harry Potter film franchise, a related branch of the Harry Potter empire finds itself involved in a curious copyright dispute. This is not another case of an obscure author claiming that J.K. Rowling stole her billion-dollar story from an earlier work. Instead, an independent font company has asserted, in a lawsuit filed on July 5 in the Eastern District of New York, that merchandise sold at Universal Studios’ “The Wizarding World of Harry Potter” theme park in Orlando makes unauthorized use of one of its typefaces.

An Electronic Reserve Identity Crisis: The Next Challenge To Educational Fair Use

In May 2011, a bench trial commenced in the Federal District Court for Northern Georgia which may change the way college libraries everywhere operate. In 2008, Academic publishers Cambridge University Press, Oxford University Press, and Sage Publications filed a complaint against Georgia State University, alleging copyright infringement on a grand scale by the school’s library [...]

A Dispatch from the Copyright Front Lines: MAFIAA Fire takes on ICE

The ongoing conflict between content-industry groups and “open Internet” proponents has been heating up recently in a battle over Internet sites that allegedly allow users to access pirated or counterfeit content. Since last summer, the Department of Homeland Security’s Immigrations and Customs Enforcement (ICE) division has been running a campaign it calls “Operation: In Our [...]

Google Books Settlement Rejected

This week a federal court put the brakes on Google’s plans to create a universal digital library by rejecting the company’s proposed settlement of class-action lawsuits filed by authors and publishers challenging the Google Books project. On March 22, 2011, more than a year after conducting a fairness hearing on the parties’ amended settlement agreement, [...]

Glee Hits a Sour Copyright Note

In the latest episode of the hit Fox show Glee, entitled “Original Song,” the high school glee club, “New Directions,” prepares to perform the track “Sing” by My Chemical Romance in a regional competition. Out of nowhere, My Chemical Romance sends a cease and desist letter to the kids forbidding them from using the song. Although [...]

RIAA Not Keen On Hearing The .MUSIC

While brand owners have taken issue with the vast trademark implications of ICANN’s proposed (and at this point, likely) expansion of the domain name space to add countless new generic top-level domains (gTLDs) to the Internet, one organization has raised the specter of increased copyright infringement pursuant to domain name expansion. The Recording Industry Association [...]

Is it getting hot in here? Perfect10.com takes on Chilling Effects

In what must be one of the nation’s longest-lived Internet copyright wars, Perfect10, Inc. recently opened up a new front, asserting that online publication of its Digital Millenium Copyright Act takedown notices is a copyright violation. Perfect10, founded by former mathematics professor and professional poker player Norman Zada, is a softporn fee-based Internet site and [...]

Dollar Bin Divers Rejoice! First Sale Doctrine Applies to Promo CDs

Most of you serious music fans have at least one. At some point, you were diving through the dollar bins of a used record store and came across an unfamiliar album by your favorite artist, bearing a label such as “Promotional Use Only – Not for Sale.” These Promotional CDs are routinely mailed in advance [...]

Ninth Circuit Imposes DMCA Liability, Even in the Absence of Copyright Infringement

The Ninth Circuit’s liability determination in MDY Industries v. Blizzard, discussed in my prior post, rested not on copyright infringement, but on a violation of the Digital Millenium Copyright Act (DMCA) provisions regarding circumvention of access controls. As discussed previously, Section 1201(a)(1) prohibits “circumvent[ing] a technological measure that effectively controls access to a work protected [...]

Update: Blizzard Owns Your Software

As expected, the Ninth Circuit has declared link that Blizzard’s World of Warcraft (WoW) software licensees are just that — licensees, and not owners — because the WoW Terms of Use sufficiently restrict the transfer and use of the WoW software. MDY Industries, LLC v. Blizzard Entertainment et al., No. 09-15932 (9th Cir. December 14, [...]

Update: Parallel Imports: Trademarks, Copyrights, and the Supreme Court

The stage has been set for an issue important to brand-owners and importers alike, the importation of parallel imports or “gray market” goods, to be addressed by the Supreme Court early in the high court’s October 2010 Term. Oral argument for Costco Wholesale Corporation v. Omega, S.A., No. 08-1423 has been scheduled for Monday, November [...]

Update: Autodesk Owns Your Software

Autodesk owns your software if you (think you) own a copy of AutoCAD, that is. In a reversal of fortune for enterprising eBay seller Timothy Vernor, the U.S. Court of Appeals for the Ninth Circuit vacated summary judgment of noninfringement, holding that Autodesk’s customers were licensees — not owners — and thus were not entitled [...]

The DMCA: Less Protection Than Meets The Eye Against Circumvention Of Technological Measures To Prevent Access To Software

The anti-circumvention provision of the Digital Millennium Copyright Act, 17 U.S.C. § 1201, continues to challenge courts in the context of computer software. Section 1201(a)(1) prohibits “circumvent[ing] a technological measure that effectively controls access to a work protected under” Title 17. 17 U.S.C. § 1201(a)(1)(A). A recent decision of the Fifth Circuit Court of Appeals, [...]

The Political Parody Problem

In a bid to win the hearts and minds of voters, lately political candidates have touted, among other things, their musical predilections. In at least two recent cases, candidates have sanctioned the alteration of the lyrics, but not the tune, of some of their favorite music to shore up political support. The musicians who own [...]

Get Out of Jail(breaking) Free — At Least As Far As Copyright Is Concerned

 In the past few years, the Apple iPhone and its "smartphone" brethren have seen widespread adoption throughout the United States. Combining the features of computers and traditional mobile phones, along with additional features like movement detection, GPS capabilities, and over-the-air videoconferencing, smartphones have, for many people, become indispensible tools for both work and pleasure. Sometimes, [...]

Can You Be A Little More Specific? General Knowledge of Copyright Infringement Not Sufficient to Forfeit DMCA Safe Harbor Protection: Viacom International, Inc. v. YouTube, Inc.

Almost since the founding of YouTube in 2005, the on-line video service has been labeled by commentators as a top virtual destination for copyright-infringing material. According to a lawsuit brought by Viacom International, Inc., YouTube was aware of this alleged infringement as a general matter, and through advertising revenues profited handsomely from it. Nevertheless, a federal judge has [...]

Parallel Imports: Trademarks, Copyrights, and the Supreme Court

A pending Supreme Court case may affect prevention of parallel imports, which is an important concern for trademark owners who wish to maintain their right to control the sale of goods developed for use in a particular market. Parallel imports, also known as “gray market” goods, are goods bearing a trademark protected in the United States that have [...]

So You Think You Own That Software?

Many of us have, at one point or another, found ourselves overwhelmed by the amount of stuff lying around our homes, and have taken the opportunity to clean up (and make a bit of spending money in the process) by selling used books, CDs, DVDs, or VHS tapes at a yard sale, or at a [...]

Copyright Registration for Collective Works: Muench v. Houghton Mifflin

A recent decision from the Southern District of New York should be of interest to anyone responsible for registering the copyright in compilations or collective works. In Muench Photography, Inc. v. Houghton Mifflin, 09-CV-2669 (S.D.N.Y. May 4, 2010) (PDF), the court ruled that the plaintiff, which owned the copyright in certain photographs that defendant Houghton [...]

Photographers and Visual Artists Sue Google over Google Books

A new wrinkle has recently appeared in the legal landscape surrounding Google’s Google Books project. While the parties to the authors’ and publishers’ lawsuit await a court decision on approval of their proposed settlement, a different group of plaintiffs has filed a new class action lawsuit against Google on behalf of photographers, visual artists, and [...]

Song Author Prevails on Summary Judgment in Rap Music War

Cleveland area radio personality and early rap artist Orrin Lynn Tolliver, Jr. is on a roll in the Southern District of New York. After finding out in 2005 that a song he recorded in 1983 had been sampled in the multi-platinum hit “My Humps” by the Black Eyed Peas (iTunes sample available here), Tolliver sued his [...]

Google Books Update

The content production and delivery world continues to wait with bated breath for a decision as to the legality of the Google Books project. Several years ago, Google announced that it was partnering with major libraries – including, among many others, the Harvard University Library, the New York Public Library, and Oxford University’s Bodleian Library [...]

Microsoft No Longer Seeking DMCA Take-Down of Cryptome or Leaked Compliance Handbook

Last week, lawyers from Microsoft issued a demand under the Digital Millennium Copyright Act (DMCA) seeking the removal of leaked copies of Microsoft’s “Global Criminal Compliance Handbook” that pulled website Cryptome.org from the Internet, at least temporarily.  The DMCA provides copyright owners with the ability to request that internet service providers remove infringing materials from [...]