Copyright News

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July 15, 2014

White v. West Publishing - Summary of Decision

Over a year ago, Judge Rakoff granted summary judgment, but deferred issuing an opinion, in favor of West Publishing and Reed Elsevier (LexisNexis) in a copyright infringement class action suit brought by several lawyers alleged that West and Lexis/Nexis had infringed copyrights in their electronically court-filed briefs by aggregating them in a key-word tabbed and text-based searchable database for a fee. On July 3, 2014 (17 months later) Judge Rakoff finally issued his opinion explaining his reasoning for finding fair use.

Read more: White v. West Publishing - Summary of Decision by Barry Werbin

   

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July 7, 2014

American Broadcasting Cos., Inc., v. Aereo, Inc.

On June 25th, the Supreme Court reversed the decision of the Court of Appeals for the Second Circuit, holding that Aereo Inc.'s digital system infringed the exclusive right of a collection of broadcast networks to publicly perform their copyrighted works.

Read more: American Broadcasting Cos., Inc., v. Aereo, Inc.

   

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April 22, 2014

NYS Supreme opinion on CPLR statute of limitations for pre-72 copyrighted recordiings

On April 14, 2014, New York State Supreme Court Judge Shirley Kornreich issued an order addressing the statute of limitations under the CPLR for copyright infringements of pre-1972 sound recordings. Judge Kornreich sets up a possible split among the very few judges who have ruled on the issue in NY, as to whether it should be 3 years as under the federal Copyright Act, analogizing infringement to a tort or injury to property type claim, or the 6-year residual limitations period for causes of action for which there is no specific statute of limitations. The case is Capitol Records, LLC. v. Harrison Greenwich, LLC, Case. No. 652249/2012.

   

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April 10, 2014

Swatch decision

The Second Circuit recently issued a decision that the defendant's use of a conference call transcript constituted fair use.

   

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April 10, 2014

Psihoyos v. John Wiley

In Psihoyos v. John Wiley & Sons, Inc., decided on April 4, 2014, the Second Circuit joined other circuits in holding that the discovery rule applies to statute of limitations in copyright infringement cases.

   

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April 10, 2014

College Art Association Report

This report to the College Art Association called “Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and Museum Visual Arts Communities” examines how “[t]he visual arts communities of practice share a common problem in their confusion about and misunderstanding of the nature of copyright law and the availability of fair use.”

   

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October 4, 2013

Update on Gaylord v. US

Update – If you remember the Gaylord v. US Korean War memorial fair use stamp case we had reports on over time, as a final chapter, in a Sept. 20 decision the Court of Federal Claims awarded Gaylord $684,000 against the government for using a photo of his sculpture on the stamps. The case had been up to the Court of Appeals for the Federal Circuit twice – first reversing the Court of Claims’ very questionable fair use ruling in favor of the government, and second, in 2012 reversing a $5,000 damage award by the Court of Claims in a decision directing the lower court to reassess damages based on a hypothetical commercial license negotiation.

Read more: Update on Gaylord v. US

   

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October 4, 2013

Free Market Royalty Act

The Free Market Royalty Act was introduced September 30...

Read more: Free Market Royalty Act

   

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September 19, 2013

Recent SDNY Decisions

As you may have seen, the Southern District of New York issued some new decisions of interest in the last week:

  • In re: Autohop Litigation, case number 1:12-cv-04155, in the U.S. District Court for the Southern District of New York
  • TufAmerica Inc. v. Diamond, 12 Civ. 3529 (AJN), in the U.S. District Court for the Southern District of New York.

Read more: Recent SDNY Decisions

   

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September 16, 2013

FilmOnX Decision

On Sept. 5, the District of D.C. issued a preliminary injunction against FilmOnX LLC, in favor of Fox and other over-air broadcasters in the D.C. area, including Disney and Telemundo. FilmOn isn’t a stranger to these claims, as it was previously known as AereoKiller, under which named it was enjoined by a California district court earlier this year in a case currently on appeal to the Ninth Circuit. (After trademark complaints by Brooklyn-based Aereo, AereoKiller changed its name.)

Read more: FilmOnX Decision

   

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August 16, 2013

Fox Broadcasting Co. v. Dish Network (9th Cir.)

On July 24, 2013, the 9th Circuit affirmed the District Court's denial of a preliminary injunction against Dish Network over its "Hopper" DVR that skipped over commercials, as well as its PrimeTime Anytime service. The Court held (from the Syllabus) that "the record did not establish that the provider, rather than its customers, made copies of television programs for viewing. The broadcaster did not establish a likelihood of success on its claim of secondary infringement because, although it established a prima facie case of direct infringement by customers, the television provider showed that it was likely to succeed on its affirmative defense that the customers’ copying was a 'fair use.' Applying a 'very deferential' standard of review, the panel concluded that the district court did not abuse its discretion in denying a preliminary injunction based on the alleged contract breaches." (The contract claims related to the broadcast contract between Fox and Dish and are not summarized here).

Read more: Fox Broadcasting Co. v. Dish Network (9th Cir.)

   

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August 16, 2013

Dereck Seltzer v. Green Day, Inc. et al. - 9th Cir. Transformative use of poster art

Lots more happening as the 9th Circuit also issued its significant opinion on Aug. 7 in Dereck Seltzer v. Green Day, Inc. et al., affirming on fair use grounds the District Court’s grant of summary judgment to the rock band Green Day and its concert tour video producer and photographer, who had created a four-minute video that included an image of plaintiff’s copyright-protected “Scream-Icon” poster affixed to a wall on Sunset Boulevard. The still image of the poster was taken by the photographer and set designer, Roger Staub, initially for his personal use, who also was a co-defendant and made the video. The video added graphic elements to plaintiff’s work, and was played as a backdrop for one of Green Day’s songs (““East Jesus Nowhere”) on its 2009-10 national concert tour, including at some 70 concerts and the MTV Video Music Awards.

Read more: Dereck Seltzer v. Green Day, Inc. et al. - 9th Cir. Transformative use of poster art

   

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February 21, 2013

EU Court of Human Rights Photography Copyright Decision

A fascinating and unusual decision of first impression (published only in French) was issued by the European Court of Human Rights (ECHR) involving the rights of photographers to use photographs taken at French fashion shows. Under French law, the fashion houses own the copyrights to any photos taken at a show. In the case, Ashby Donald and others v. France [ECtHR (5th section), 10 January 2013], the Court clarified for the first time that a copyright infringement conviction based on illegally reproducing or publicly communicating copyright protected material can be deemed an interference with the rights of freedom of expression and information under Article 10 of the European Convention.

Read more: EU Court of Human Rights Photography Copyright Decision

   

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February 20, 2013

New Batmobile Decision

A very interesting 1/26/2013 decision out of the C.D. Cal., ruling on cross summary judgment motions, finds in favor of DC Comics (Warner) that the iconic Batmobile® is akin to a “character” protectable by copyright as opposed to an unprotected functional automobile.

Read more: New Batmobile Decision

   

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January 23, 2013

DNJ rules that issued registration not application is necessary for infringement action

Fueling the growing split among district and circuit courts, on 1/4/2013, D.N.J. Judge William Martini ruled in North Jersey Media Group Inc. v. Sasson that actual registration of a copyright, not a pending application, is required under 17 USC 411(a) in order to institute an action for infringement.  Plaintiff NJMG, a news reporting company, sued Sasson (a former NJMG employee) for posting on his blog, which was critical of NJMG, certain articles written and photographs taken by NJMG journalist employees.  Sasson moved to dismiss “because NJMG has only applied for, but not yet received, certificates of copyright registration.”

Read more: DNJ rules that issued registration not application is necessary for infringement action

   

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January 14, 2013

Two new cases of note

Fox v. Aereokiller and Washington Shoe v. A-Z Sporting Goods

First, the CD Cal. granted a preliminary injunction on Dec. 27, 2012, in favor of multiple broadcast network plaintiffs in Fox Television Stations, Inc., v. Aereokiller, LLC. Aereokiller is a post-Aereo copycat that relied on the SDNY’s Aereo and 2d Circuit Cablevision decisions as a defense to infringement claims based on the public performance right respecting the retransmission of broadcast TV content.

Read more: Two new cases of note

   

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October 17, 2012

New Judge Posner Blog - "Do patent and copyright law restrict competition and creativity excessively?"

In the current issue of an interesting new blog site started by Judge Richard Posner (7th Circuit) and noted economist Gary Becker, Judge Posner openly opines that the “most serious problem with copyright law is the length of copyright protection” and he argues for a reduction from life + 70 years. In addition, Judge Posner argues that the “next most serious problem is the courts’ narrow interpretation of ‘fair use.’” He argues that “the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible… Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity. This is not widely recognized.”

Read more: New Judge Posner Blog - "Do patent and copyright law restrict competition and creativity excessively?"

   

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October 17, 2012

New case tests fair use in controversial anti-gay political ads

A new copyright infringement action was just filed in Denver by a male gay couple, Brian Edwards and Tom Privitere, whose engagement photo depicting them kissing each other was used w/o permission in anti-gay ads by the "Public Advocate of the United States," an organization characterized by the Southern Poverty Law Center (which is representing the couple and photographer) as a hate group. The photo was posted to a blog by the couple two years ago, but was recently copied and digitally altered to change the background by the defendant organization, which used it a smear ad campaign against Republican former-state Sen. Jean White, who had supported recent legislation to legalize gay civil unions in the state.

Read more: New case tests fair use in controversial anti-gay political ads

   

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October 2, 2012

New News

Two developments of note:

1. American Institute of Physics and John Wiley & Sons Inc. v. Schwegman Lundberg & Woessner PA (D. Minn.). This is one of the cases filed earlier this year where publishers sued patent law firms for copyright infringement based on copies the firms made of scholarly journal articles filed with the Patent Office with patent applications in the context of legally required prior art disclosures. In January 2012, the Patent Office issued a memo stating its belief that such copying and submissions should be deemed fair use.

Read more: New news

   

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October 2, 2012

Fed. Claims Ct. decision on (c) damages and derivative works

Once again, we are blessed with another interesting case from the Court of Federal Claims (remember Gaylord v. US - the Korean War memorial case?), which has opined on what constitutes a derivative work and statutory damages. The case is Cohen v. The United States (Fed Cl. 6/27/12).

Read more: Fed. Claims Ct. decision on (c) damages and derivative works