Copyright & Literary Property Committee

The Copyright & Literary Property Committee addresses a wide variety of issues of concern to the copyright bar and to industries that are focused on content creation, distribution and publication, including book and magazine publishing, media, entertainment, music, art, film, and online content delivery technologies and business models. We follow and report on noteworthy decisions, new and proposed legislation, and cutting edge developments, such as in the areas of digital publishing rights, online digital media storage and access, DMCA enforcement, first sale doctrine, apparel design protection, evolving fair use standards, copyright restoration and recapture, online piracy, and anti-counterfeiting enforcement and remedies. The Committee also sponsors, sometimes with other Committees within the IP committee cluster, both CLE and non-CLE programs. 

Committee members regularly volunteer to give insightful reports at each meeting on new cases, proposed legislation and news items of interest. If you have a strong interest in copyright and are willing to attend monthly meetings and participate actively, you are encouraged to submit your application to the City Bar before June 1. Members serve for staggered three-year terms by class, with one third (approximately 13 members) rotating as of each September 1.

December 2020 - January 2021 Updates:

  • “Copyright Preemption and the Right of Publicity” (Robert W. Clarida, Robert J. Bernstein): NYCBA Copyright & Literary Property Committee member Robert Bernstein co-authored a New York Law Journal article on the recent Second Circuit decision in Jackson v. Roberts, 972 F.3d 25 (2d Cir. 2020), which addressed issues relating to copyright preemption and right of publicity. Read the column here.
  • Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Passes in U.S. Congress: The $2.3 trillion spending and coronavirus relief bill passed by Congress on December 21, 2020, which includes several IP provisions, such as creating a copyright small claims court, making unauthorized commercial streaming of copyrighted material a felony, and altering some trademark and patent procedures. The portion of the bill relating to the CASE Act begins on page 77 of the full text of the bill, which can be viewed here.
  • Dr. Seuss Enterprises, LP v. ComicMix LLC (9th Cir.): The Ninth Circuit reversed a district court’s grant of summary judgment, ultimately finding that defendants’ mash-up of Star Trek and Dr. Seuss was not a fair use. The court found that the district court erred in putting the burden on plaintiff as to the fourth fair use factor, the market harm element, given that fair use is an affirmative defense for defendants. Decision here.
  • Apple v. Corellium (S.D. Fl.): The U.S. District Court, S.D. Fl., granted portion of Corellium’s summary judgment motion arguing that security firm’s creation of a mirrored version of Apple’s iOS was a fair use, but denied portion of dueling motions relating to DMCA violations. Decision here.
  • Jackson v. Netflix (C.D. Cal.): The U.S. District Court, C.D. Cal., granted Netflix’s motion to dismiss copyright and trademark infringement claims relating to the “Tiger King” documentary series. Plaintiff magazine had claimed that the series infringed its articles, including one titled “Joe Exotic, The Tiger King.” The copyright claims were dismissed on the basis that they were inadequately pled, without specifying what exactly was infringed. Plaintiff, however, was allowed to amend. The trademark claims were dismissed based on the First Amendment, without leave to amend. Decision here.