Posts in Copyright Litigation

The Federal Circuit recently decided the case of Oracle America v. Google Inc. To “attract Java developers to build apps for Android,” Google copied the declaring code, but wrote its own implementing code for the 37 Java API packages. Id at 1187.  Previously, the Federal Circuit held that “[the] declaring code and the structure, sequence, and organization (‘SSO’) of the Java API packages are entitled to copyright protection.” .  On the other hand, the Federal Circuit also recognized that a reasonable jury could find that “the functional aspects of the packages” are “relevant to Google’s fair use defense.” In this key decision that has the potential to rock the software industry, the Court of Appeals for the Federal Circuit rejected the jury verdict and found that “Google’s use of the 37 Java API packages was not fair as a matter of law.

While existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk.  If the original graffiti artist cannot be found, or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.

On Friday, May 11th, U.S. District Judge Edward Davila entered an order deciding motions made in a copyright case involving competing musical productions based on the fictional story of the fictional folk hero Zorro. Judge Davila’s orders allows copyright infringement claims asserted by a writer who developed a Zorro musical in the 1990s to move forward against Zorro Productions, the entity which had licensed the Zorro character to entertainment companies going back to the late 1940s. This case is in the Northern District of California.

In early February, a copyright complaint was filed in the Southern District of New York against comedian Jerry Seinfeld and a series of companies involved with the production and distribution of the web series Comedians in Cars Getting Coffee. The plaintiff, director Christian Charles, claims that he created the proof-of-concept and pilot episode upon which the web series is based and that he has been shut out from the production, profits and royalties in violation of his copyright.

U.S. District Judge Alvin Hellerstein entered an opinion and order denying summary judgment in the Southern District of New York in a case involving the stage musical production of Anastasia currently running on Broadway. Judge Hellerstein denied the motion for summary judgement filed by defendants Anastasia LLC and Terrence McNally, the bookwriter for Anastasia, finding that there were material facts in dispute regarding claims that the Broadway musical was substantially similar to a play which was first registered with the U.S. Copyright Office back in 1948.

These issues of fairness and fair use are played out in the recent Oracle v. Google decision. In a convoluted case that has gone up to the Supreme Court once and will again, the Federal Circuit finally was able to make a ruling that the blatant, verbatim copying of computer code is not a fair use. At issue were the copying of 37 Oracle programs or apps, constituting over 11,500 lines of code, by Google for their use in the Android operating system for smart phones and other uses… In the Federal Circuit’s final analysis of the four factors, they again noted that Google could have written their own code or properly licensed with Oracle, but instead chose to copy. “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Accordingly, the Federal Circuit held that Google’s use of the Oracle code was not a fair use.

Artist Matt Furie, the creator of the Pepe the Frog anthropomorphic frog character that has gained notoriety for its use in Internet memes, filed a complaint for copyright infringement in the Central District of California. The suit targets a pair of companies managed by far-right conservative radio show host Alex Jones over the use of the Pepe character over the sale of a poster including a likeness of Pepe alongside political figures from the alt-right and the 2016 presidential campaign of Donald Trump.

The Federal Circuit found Google’s use of Java API packages in it’s Android operating system was not a fair use as a matter of law, resurrecting a multi-billion dollar copyright case brought by Oracle Corp against Google. With copyrightability and fair use now decided, unless the Supreme Court intervenes (which seems unlikely) this case will head back to the district court for a damages trial with the sole question being how much money Google owes Oracle America. “This is a hugely important development in the law of copyright and fair use. If it stands, there are numerous implications,” said J. Michael Keyes is a partner at the international law firm Dorsey & Whitney.

The case is interesting, however, not just because it involved famous subjects – a “renowned photographer” (as the Plaintiff was described in the court’s first sentence), a famous brand (Nike) and one its most well-known logos (“Jumpman”), and a photo of one of the most famous people in the world (Michael Jordan) – although these items alone perhaps merit some attention. But for lawyers and those who deal with copyright protection in the business world, perhaps more interesting is the court’s explication of the classic copyright concept of the idea-expression dichotomy, as well as its holding that the photograph at issue, while not infringed, was entitled to broad protection.

On Wednesday, March 21, 2018, a panel of the United States Court of Appeals for the Ninth Circuit ruled that the song Blurred Lines infringed the copyright in Marvin Gaye’s song Got To Give It Up. See Williams v. Gaye, No. 15-56880. Affirming most of the decision of the district court, the Ninth Circuit also held that the award of actual damages and infringers’ profits, and a running royalty, were all proper. The panel did, however, reverse a piece of the district court ruling, finding that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts.

Attorneys representing Jamaican songwriter Michael May filed a suit for copyright infringement in the Southern District of New York. At issue in the case are musical elements from a 1988 song written by May which were allegedly copied by songwriters for Miley Cyrus 2013 single We Can’t Stop. Although the song lyrics are the only musical element which have been allegedly infringed, the complaint makes plenty of mention of cultural elements which have also been appropriated by Cyrus during the course of her career.

On February 15, 2018 a New York district court judge – in Goldman v. Breitbart News Network – challenged the reasoning of Perfect 10, and she concluded that one who embeds content may be engaged in a public display, thus making the practice far more risky… In Goldman v Breitbart News, Judge Katherine Forrest ruled that the Ninth Circuit was wrong to rely on the Server Test, and that a website thus can face direct liability, under particular circumstances, for making a display by embedding a copyrighted work in a website. The case involved a copyrighted image of Tom Brady, Danny Ainge and others that was first posted by the photographer as a Snapchat Story, but was soon copied by several individuals on Twitter with accompanying tweets.

So uncreative did Judge Michael Fitzgerald find Taylor Swift’s 2014 hit Shake It Off, he dismissed a copyright infringement case filed against her. In his opinion Judge Michael Fitzgerald explained the allegedly infringing lyrics used by Swift lacked even the modest level of creativity required for copyright protection… “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal,” Fitzgerald worte. “In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’”

If our legal system worked properly, it would be easy enough for her to file for copyright infringement. But under our current claims system, high litigation costs make it almost impossible for authors, writers and artists to protect their livelihoods in court. Independent creators are frequent victims of piracy and other forms of copyright infringement. But without the resources of a record company or publisher, pursuing small claims is financially impossible… Fortunately, there’s a bipartisan policy fix pending in Congress. It’s called the CASE Act (H.R. 3945), and it creates a system that makes pursuing small claims financially and logistically feasible.

The lawsuit is the latest example of content creators chasing down a third party that does not directly infringe content but rather facilitates infringement through a combination of its own hardware and third-party software… Currently, the increasingly proposed solution for safeguarding digital information is blockchain technology. Blockchain is being implemented in various industries to solve inefficiencies in areas from identity protection to supply chain management… To understand blockchain technology as a potential solution to the problems posed in the digital rights management space, one must first understand what the technology is and how it operates.