Posts in Copyright

Michael Bynum Names New Defendants in Proposed Amended Complaint to 12th Man Copyright Lawsuit

On November 23, sportswriter Michael Bynum and his publishing label Epic Sports filed a motion for leave  to file a second amended complaint and a proposed second amended complaint in the Southern District of Texas. The filings seek to revive copyright infringement claims filed by Bynum against employees at Texas A&M University for their roles in unauthorized distributions of Bynum’s biography of E. King Gill, a former Texas A&M student who inspired the 12th Man tradition at Texas A&M, by adding several new defendants who were actually responsible for the unauthorized copying at issue in the case.

USPTO, Copyright Office Joint Study on NFTs Could Help Dispel Confusion About IP Ownership in Media Content Underlying Digital Assets

On November 23, the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office published a joint notice of inquiry in the Federal Register announcing that the two agencies would be collaborating on a study regarding intellectual property legal issues related to digital assets known as non-fungible tokens (NFTs). The announcement follows the dramatic rise in mainstream attention on NFTs due to their wildly fluctuating value, which has in turn created a great amount of confusion surrounding IP rights to NFTs and the underlying digital files used to create them.

Unauthorized Hamilton Production Underscores Issues with Unlicensed, Infringing Staged Theatrical Productions

This August, the Door Christian Fellowship McAllen Church made some unfortunate headlines after it came to light that the church had produced and staged a performance that made unauthorized use of original works from the blockbuster Broadway musical, Hamilton. By the end of the month, The Door had issued an apology for the unauthorized performances and agreed to pay damages and destroy any recordings of the staged performance in respect of the intellectual property protections of Hamilton’s creators. While this unlicensed and infringing use was quickly dealt with by Hamilton’s legal team, there have been other instances of recalcitrant producers who have only been held accountable for staging unlicensed theatrical works after years of infringement.

Ninth Circuit Affirms Validity of Unicolors’ Copyright Registration on Remand, But H&M Scores Big on Remittitur Calculations

On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application. In light of that ruling, the Ninth Circuit upheld Unicolors’ ability to maintain its copyright infringement action against H&M because the plaintiff did not have the requisite knowledge of the legal inaccuracy on its registration application to invalidate the registration. While the Ninth Circuit dismissed most of H&M’s arguments on remand, the appellate court did agree with H&M that the district court’s post-remittitur damages were improperly calculated, leading to a significant reduction in the amount awarded to Unicolors in the case.

Overbroad State Right-to-Repair Bills Would Violate Federal Copyright Law

The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops. While the goal of expanding repair opportunities for consumers is certainly laudable, repair advocates are pulling a fast one when it comes to the federal copyright law implications of their preferred state legislative solutions. As Professor Adam Mossoff and I explain in a new Hudson Institute policy memo, these proposed state right-to-repair bills are unconstitutional on their face because they directly conflict with the rights secured to authors under the federal Copyright Act. They are also the wrong policy since they would upset the legal and policy foundations that have led to the unprecedented success of today’s thriving digital marketplace. States should not waste valuable time and resources on harmful right-to-repair bills that will be struck down when they are inevitably challenged.

U.S. Copyright Office Backtracks on Registration of Partially AI-Generated Work

On October 28, Kristina Kashtanova, an artist and artificial intelligence (AI) consultant and researcher, received notice from the U.S. Copyright Office (USCO) that the registration for the first issue of her partially AI-generated graphic novel, Zarya Of The Dawn, may be canceled. A month earlier, on September 15, the USCO issued a registration for Kashtanova’s work, which was subsequently widely publicized as the first known instance of an AI-generated work being successfully registered with the USCO. In the USCO’s recent communication, “I was asked to provide details of my process to show that there was substantial human involvement in the process of creation of this graphic novel,” Kashtanova explained by email. When asked to confirm the potential cancellation for Kashtanova’s registration, the USCO provided a written statement saying…“Copyright under U.S. law requires human authorship. The Office will not knowingly grant registration to a work that was claimed to have been created solely by machine with artificial intelligence.”

Johnny Depp and Jeff Beck Sue Folklorist Accusing Them of Stealing Lyrics to ‘Hobo Ben’ Poem

Johnny Depp and guitarist Jeff Beck filed a lawsuit last Friday against folklorist and SUNY Buffalo professor Bruce Jackson, who accused the pair of plagiarizing a song on their latest album, “18”. In two demand letters the folklorist sent in August, Jackson alleged that Depp and Beck infringed the copyright of the poem “Hobo Ben” by copying entire passages. However, in their lawsuit filed in the U.S. District Court for the Western District of New York, Depp and Beck’s lawyers argue that Jackson never owned the copyright to “Hobo Ben,” as it was “part of an oral tradition passed down for generations and performed by an unidentified individual.” Therefore, they are asking the judge for a declaration of noninfringement, so the pair can “preserve their rights, defend their good names, and protect their business and business relationships.”

Copyright Office Issues NPRM to Correct MLC’s ‘Erroneous’ Dispute Policy on Post-Termination Blanket License Royalties

On October 25, the U.S. Copyright Office issued a notice of proposed rulemaking (NPRM) in the Federal Register to clarify the application of the derivative works exception to copyright termination rights within the context of blanket licenses administered under the Music Modernization Act (MMA). The Office is hoping to correct what it sees as a legally erroneous dispute resolution policy established by the Mechanical Licensing Collective (MLC), which administers the MMA’s blanket licenses to digital music providers, regarding the payment of royalties after songwriters exercise their termination rights to regain copyright ownership from music publishers.

USIPA Survey Shows Most Americans are in the Dark on IP

Yesterday, the United States Intellectual Property Alliance (USIPA) issued the results of a nationwide survey designed to determine the level of intellectual property awareness among American adults. Perhaps unsurprisingly, USIPA’s survey found that, while most American believed they understood IP, seven out of 10 survey respondents could not identify examples of intellectual property when asked. This new research should add new urgency to the efforts of IP advocates who are trying to increase participation in the U.S. IP system.

White Paper Proposes Solutions for Overhaul of Section 512

The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law. Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy

SCOTUS Justices Lob Tough Questions at Both Sides in Prince-Photo Fair Use Fight

The Supreme Court today heard oral arguments in The Andy Warhol Foundation v. Lynn Goldsmith, a case asking the nation’s highest court to determine whether Warhol’s unlicensed use of Goldsmith’s photographs of pop superstar Prince was a fair use of that copyright-protected photo. Many of the Supreme Court’s questions focused on the scope of the use at issue in the case, as well as the extent of the new meaning or message that a purportedly derivative work must take on before it is considered transformative under factor one of the four-factor fair use test.

Hip-Hop Producer’s SCOTUS Petition Argues Ninth Circuit was Improperly Indifferent to ‘Unique, Paramount Issue’ of Subject Matter Jurisdiction

This week, the U.S. Supreme Court docketed a petition for certiorari filed on September 17 by hip-hop producer Gary Frisby, who performs under the name G-Money, asking the Court to revive his musical composition copyright case that alleged infringement of Frisby’s 2013 beat track “Shawty So Cold.” Frisby’s appeal challenges the U.S. Court of Appeals for the Ninth Circuit’s ruling that the appellate court lacked subject matter jurisdiction over Frisby’s appeal from U.S. district court because he failed to file a notice of appeal, despite the fact that the court failed to inform Frisby that the ruling on summary judgment was filed.

Journalism Competition and Preservation Act Moves Out of Committee Despite Concerns

This morning, the full U.S. Senate Committee on the Judiciary convened an executive business meeting during which the committee advanced S. 673, the Journalism Competition and Preservation Act (JCPA). Though the bill was reported favorably with an amendment drawing support from the Republican members of the committee, others on the Senate Judiciary raised concerns that could presage further debate after it hits the floor of the Senate. The JCPA was first introduced into both houses of Congress last March, with Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) sponsoring the Senate version and Representatives David Cicilline (D-RI) and Ken Buck (R-NY) sponsoring the version introduced into the House of Representatives.

Taking Control of the Game: How Sports Rights Owners are Fighting Piracy

On August 18, 2022, Albert Pujols hit a grand slam against Austin Gomber for his 690th career home run. A clip of that home run was posted on Reddit before the official Major League Baseball (MLB) app was updated. Three years ago, the post would have been taken down quickly. Today, it has thousands of fans commenting on it instead. In 2020, MLB reversed course on a long-established content policy by going beyond simply allowing fans to post clips and highlights of MLB games. They introduced Film Room, a product that lets fans search clips, make reels, and post them to social media. This decision was made with intent – to take back control over how its media was being used online. “I think we’re at the point now where we believe that making our content available for our fans, particularly our younger fans, in a way that’s easy for them to consume, is really important,” Chris Marinak, MLB’s chief operations and strategy officer told Sporting News.

Perlmutter Reports to IP Subcommittee on CCB Performance, Deferred Exam Alternatives

The Senate Judiciary Committee’s Subcommittee on Intellectual Property yesterday held a hearing on “Oversight of the U.S. Copyright Office,” with Register of Copyrights and Director of the Copyright Office, Shira Perlmutter, as the sole witness. Perlmutter updated the senators on a number of projects in process, including how the Copyright Claims Board (CCB), a small copyright claims tribunal implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act, is working so far.